Kathy Breiding v High Hopes Films, LLC et al.
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Attorneys and Parties
Brief Summary
Employment discrimination and retaliation claims arising in the independent film industry, including alleged gender-based mistreatment after an actress refused a scripted on-screen kiss.
The lower court denied defendants' motion for summary judgment dismissing plaintiff's hostile work environment, sex discrimination, and retaliation claims under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL).
The Appellate Division modified the order to dismiss only the hostile work environment and retaliation claims under the NYSHRL, and otherwise affirmed, leaving the NYCHRL hostile work environment and retaliation claims, as well as the discrimination claims, intact.
The court held that plaintiff's claims were timely under a continuing discriminatory practice theory, but the alleged conduct was too sporadic to satisfy the pre-amendment NYSHRL hostile work environment standard under Executive Law § 296 [New York State Human Rights Law provision prohibiting employment discrimination and retaliation], and plaintiff did not show protected activity or a qualifying adverse employment action for NYSHRL retaliation. By contrast, triable issues remained under the broader NYCHRL standards, including whether she was treated less well because of gender, disadvantaged by retaliatory accusations, and whether defendants' stated reason for firing her from a third film was pretextual.
Background
Plaintiff acted opposite defendant Dennis Piliere in two independent films in 2009 and 2015, both produced by Piliere and High Hopes Films, LLC. She alleged that after she objected to or refused a scripted kiss during filming in 2015, Piliere continued for years to reference the incident, criticize her, embarrass her publicly at a film festival, and send texts invoking the refused kiss. She later sued in 2023, asserting hostile work environment, sex discrimination, and retaliation under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL). She also claimed defendants later terminated her from a third film for a pretextual reason.
Lower Court Decision
Supreme Court, New York County denied defendants' summary judgment motion on the challenged claims, concluding that plaintiff had raised triable issues as to hostile work environment, sex discrimination, and retaliation under both the NYSHRL and NYCHRL.
Appellate Division Reversal
The Appellate Division modified the order by granting summary judgment to defendants on the NYSHRL hostile work environment and NYSHRL retaliation claims. It otherwise affirmed the denial of summary judgment, holding that the claims were timely under a continuing practice theory, that the NYCHRL hostile work environment claim could proceed under the "treated less well" standard, that the NYCHRL retaliation claim could proceed because accusations that plaintiff sabotaged the film may have disadvantaged her, and that the discrimination claims survived because plaintiff raised a fact issue on pretext regarding her removal from a third film.
Legal Significance
This decision highlights the difference between the narrower pre-amendment NYSHRL standards and the broader NYCHRL protections. Conduct that is too intermittent to show a workplace permeated with discriminatory intimidation, ridicule, and insult under the NYSHRL may still support liability under the NYCHRL if the plaintiff was treated less well because of gender. The case also shows that continuing discriminatory acts can make otherwise untimely human rights claims timely, and that retaliation standards under the NYCHRL are broader than under the NYSHRL.
In New York employment cases, especially in creative industries with informal working relationships, a plaintiff may lose hostile work environment and retaliation claims under the pre-amendment New York State Human Rights Law while still proceeding under the more plaintiff-friendly New York City Human Rights Law if the record shows ongoing gender-based mistreatment, reputational harm, or evidence that an employer's stated reason for termination was pretextual.