If you believe you have experienced gender discrimination at work, it is important to understand what you need for success at every step in the process. For example, what you need to overcome a motion to dismiss by your employer is not the same as what you need to succeed at trial. A knowledgeable New York gender discrimination lawyer can go over all the steps involved with you and what you will need to achieve a positive result.
A recent sex/gender discrimination case from here in New York City offers a useful example of what it takes to defeat a motion to dismiss by your employer.
The employee was a highly successful and award-winning advertising executive. In 2020, she accepted a position with a “global creative company” in Brooklyn. By the end of 2022, the executive “managed eight direct reports and several high-profile accounts, including 1800 Tequila and Smirnoff.”
In January 2023, the executive took leave under the Family and Medical Leave Act. After she returned from FMLA in March 2023, the employer removed all eight of the executive’s direct reports. It also “gave her key accounts to less qualified male subordinates.” Two months later, the executive “had been frozen out of her accounts and substantial amounts of work had been taken away from her.”
By July 2023, the employer had terminated the executive.
The woman subsequently sued, alleging sex discrimination in violation of Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. The employer fought back by filing a motion to dismiss the lawsuit.
In analyzing the executive’s Title VII discrimination claim and the employer’s arguments for dismissal, the court noted the standard established by the U.S. Supreme Court in the 2024 case Muldrow v. City of St. Louis, Missouri. In that decision, the court said that to “make out a Title VII discrimination claim, [the plaintiff] must show some harm respecting an identifiable term or condition of employment.” She does not, however, need to “show that she suffered a materially adverse change in the terms and conditions of her employment or that the harm suffered was ‘significant.’”
To defeat a motion to dismiss, all an employee needs is an allegation (or allegations) that raise an at least minimal inference of discrimination. An employee has many different options for raising the required inference of discrimination. Examples include:
- “the employer’s criticism of the plaintiff’s performance in [discriminatory] terms;
- the employer’s invidious comments about others in the employee’s protected group;
- the more favorable treatment of employees not in the protected group;
- the sequence of events leading to the plaintiff’s discharge.”
The executive’s allegations were an example of the third of those four. Her lawsuit contended that “shortly prior to her termination, all of her accounts and direct reports were transferred to less-qualified male employees.” The court took note of those allegations and that the Second Circuit Court of Appeals has repeatedly stated that allegations of “replacement by or reassignment of duties to employees outside the protected class raises an inference of discrimination.”
Additionally, the executive alleged that after her termination, the employer replaced her with a less qualified man. That allegation further strengthened the inference of discrimination in the eyes of the court.
At Phillips & Associates, PLLC, we represent only employees and have never represented an employer. We are dedicated to helping workers who have been harmed by sex/gender discrimination, as well as other forms of discrimination and harassment. To put the power and experience you need on your side, talk to one of our experienced New York employment retaliation attorneys. Contact us online or call (866) 229-9441 to set up a free and confidential consultation today.