This is a case heard in the Supreme Court of the State of New York regarding the Plaintiff’s claims against the Defendant with respect to sexual harassment and discrimination allegedly suffered by the Plaintiff while working in the Defendant’s Moscow office.
The Plaintiff is a United States citizen and a member of the New York State bar. She was born in the New York City, where she lived and attended school. After graduation she worked in a firm in New York from 1989 to 1994, then she left New York for two years to work for a firm in North Carolina, then she returned to another New York firm. The Plaintiff again left New York in 2002 to travel and work abroad after the traumatizing events of 9-11.
In June 2006, the Defendant offered the Plaintiff a position in its London office. She began to work at the Defendant’s office in London, but as there was not enough work, she accepted an assignment to the Defendant’s Singapore office in late July or early August 2007. She subsequently accepted a two year assignment at the Defendant’s Moscow office commencing in March 2008.
The Plaintiff alleged that she was subjected to sexual harassment and discrimination during the period from July 18, 2008 until her employment was terminated on January 30, 2009.
After her termination, the Plaintiff filed a complaint with the UK Employment Tribunal for unfair dismissal and sex discrimination. At a pre-hearing review, the UK Employment Tribunal dismissed the Plaintiff’s complaint and concluded that the Plaintiff’s employment in Moscow was not subject to the Employment Rights Act as she did not work wholly or partly in the UK, the Defendant’s Moscow office did not carry on work in the UK, and she was not ordinarily resident in Great Britain at any time during the course of her employment.
After the Plaintiff’s return to New York, she commenced the current action against the Defendant for sexual harassment, discrimination, retaliation, wrongful termination for writing fiction, tort, and breach of contract.
The New York State Human Rights Law provides in pertinent part: “The provisions of this article shall apply as hereinafter provided to an act committed outside this state against a resident of this state, if such act would constitute an unlawful discriminatory practice if committed within this state.” Therefore, by its terms, this provision extends the State Human Rights Law to act committed outside the state of New York against New York residents. The issue before the Supreme Court of the State of New York was thus whether the Plaintiff is a “resident” within the meaning of the statute, and the Court accepted that proof of domicile would satisfy the requirement of New York State resident contained in the statue.
The Defendant moved to dismiss the Plaintiff’s claims contending that because the Plaintiff was not physically present in New York at the time of the complained events, she was not a resident of New York at such time.
After considered all facts, including that the Plaintiff paid United States taxes and maintained a New York driver’s license and voter registration whilst outside the United States, and she is a member of the New York State bar, the only jurisdiction where she is qualified as an attorney, the Court concluded that the Plaintiff was able to establish New York domicile. The Court further commented that due to the facts available, it could not be determined that upon leaving New York to pursue work overseas, the Plaintiff exhibited an intention to relinquish her old domicile in New York or to establish a new one.
The Court denied the Defendant’s motion with respect to the Plaintiff’s claims on sexual harassment, discrimination and retaliation due to the New York State Human Rights Law. Yet, the Court granted the Defendant’s motion with respect to the Plaintiff’s claim on wrongful termination for writing fiction as the Plaintiff failed to state a claim upon which relief might be sought.
Regarding the Plaintiff’s claims in relation to tort and breach of contract, as they did not fall within the ambit of the New York State Human Rights Law, the Defendant challenged the Court’s jurisdictions on forum non conveniens grounds.
The Court accepted that New York courts were not compelled to retain jurisdiction over a case that lacks a substantial nexus to New York. The issue was addressed to the court’s discretion and the factors to be considered included the burden that a particular action would place on the New York courts, the unavailability of an alternate forum, and the potential hardship to the Defendant. The court might also consider the location of the transaction at issue and the residence of the parties. The standard is a flexible one. However, based upon the facts and presence in this state, coupled with the fact that claims under the New York State Human Rights Law, the Court considered that they provided a nexus with the jurisdiction of New York. Therefore the Court denied the Defendant’s motion regarding the Plaintiff’s claims in relation to tort and breach of contracts.
In view of the New York State Human Rights Law, it appears that an employer outside the United States may still face legal proceedings commenced in New York courts if an employee with New York domicile alleged discriminatory claims against the employer in the course of his/ her employment outside the United States.