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June 25, 2024
A remote employee in New York recently received a mixed result in the U.S. Court of Appeals for the Second Circuit with respect to her state and federal claims for sex-based discrimination and hostile work environment. On the one hand, the Second Circuit used the “impact test” to affirm the dismissal of her claims under the New York State Human Rights Law (NYSHRL). The Second Circuit found that the employer hired the plaintiff to perform work in states other than New York and, thus, could not seek the protections of the NYSHRL. On the other hand, the Second Circuit employed the “continuing violation” doctrine to reverse the dismissal of her claim under Title VII of the Civil Rights Act of 1964 (Title VII) for sex-based hostile work environment. In doing so, the court found that her termination of employment – which fell within the limitations period – permitted a factfinder to consider the entire period of the hostile conduct because her termination was part of an ongoing discriminatory practice.
Factual Background
In King v. Aramark Services, Inc., 96 F.4th 546 (2d Cir. 2024), the plaintiff, Kristen King, was employed in various leadership positions servicing Aramark’s contract to provide food and facility services to a client with multiple facilities in Virginia and West Virginia. On the days that King did not have to be on-site at the client’s facilities, Aramark permitted her to work remotely from her permanent home in New York and from her rented home in Virginia. During the last two years of her employment, King alleged that her supervisor subjected her to ongoing discriminatory and hostile conduct, which included fabricating negative performance reviews, excluding her from important meetings, body-shaming her, and treating her differently from similarly situated male employees. King alleged that her supervisor ultimately terminated her employment for bogus reasons.
The Second Circuit’s Decision
With respect to King’s claim under the NYSHRL, the Second Circuit ruled that New York’s connection to her allegations was too tenuous to support a claim. In reaching this conclusion, the Second Circuit relied upon the “impact test,” which requires a determination of the place where the impact of the alleged discriminatory conduct is felt. In this case, the Second Circuit emphasized that King was hired to work in Virginia and West Virginia; Aramark gave her an office in Virginia at the client’s largest facility; King frequently travelled to Virginia and West Virginia to carry out her duties; she had to rent a home in Virginia to perform her job; and Aramark paid her mileage reimbursement only from her rented home in Virginia to the client’s various facilities. Given these facts, the Second Circuit concluded that the discriminatory conduct was directed towards her in Virginia and any impact that she felt in New York was tangential. The Second Circuit further stated that the fact that “some” of the discriminatory conduct took place while she worked remotely from her New York residence did not change its conclusion.
However, the Second Circuit ruled that the lower court should not have dismissed King’s claim for sex-based hostile work environment under Title VII on the ground that it was untimely. The Second Circuit relied upon the “continuing violation” doctrine in reaching this conclusion. Under this doctrine, a continuing violation occurs when an employer permits specific and related instances of discrimination to continue to the point that they amount to a discriminatory policy or practice. However, the Second Circuit ruled that “the continuing violation doctrine allows a Title VII plaintiff to rely on a discrete act to render a hostile work environment claim timely only if the plaintiff establishes that the discrete act was part of the ongoing, discriminatory practice that created a hostile work environment.” Here, the plaintiff had alleged two instances of hostile conduct that fell within the statute of limitations (i.e., 300 days). Based upon the record, the Second Circuit found that a jury could conclude that King’s termination was part of an ongoing pattern or practice of sex-based harassment given her supervisor’s decisive role in all of the misconduct. Therefore, the Second Circuit remanded the claim for further proceedings.
Employer Takeaways
This decision exemplifies how a remote employee in New York cannot seek the protections of the NYSHRL simply because the employee is a resident of the state. In addition, this decision underscores how an employee may be able to “save” a hostile work environment claim based upon misconduct that is outside of the statute of limitations period if the employee can demonstrate a nexus to misconduct that is within the limitations period. As always, employers should make sure their records accurately reflect an employee’s work state, as well as the reasons for disciplinary action, to defend against claims like the ones asserted in this case.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
