Delo v. Paul Taylor Dance Foundation, Inc.

Background

Barbara Delo, a former costumer for the Paul Taylor Dance Company, brought claims against the company and its Executive Director, John Tomlinson. She alleged retaliation under the Fair Labor Standards Act and New York Labor Law, discrimination and retaliation under the New York State Human Rights Law and New York City Human Rights Law, and discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Delo alleged that Tomlinson questioned what she would do with her baby while she was visibly pregnant, selected a less-qualified male candidate for a position, criticized her for bringing her child on a work trip, and treated her differently from male employees who brought children into the workplace. She also alleged that Tomlinson approached her and used a phone near her while she was expressing breast milk, stopped communicating with her after she complained about the workplace rules, remained angry when she brought her child on work trips, and fired her in July 2022 without giving a specific reason.

The defendants relied on a Dispute Resolution Protocol in Delo’s employment agreement that required employees to arbitrate disputes arising from or relating to their employment. They moved to compel arbitration. Delo did not appear to dispute the agreement’s general validity or application; instead, she argued that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 made the agreement unenforceable for this case.

Legal standard and analysis

The federal arbitration law generally requires courts to enforce arbitration agreements according to their terms. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act creates an exception: at the election of a person alleging sexual harassment or sexual assault, a predispute arbitration agreement is not valid or enforceable with respect to a case relating to that dispute. The statute applies to claims that accrued on or after March 3, 2022.

The court followed prior reasoning from this district that a plaintiff must plausibly allege conduct constituting sexual harassment to invoke the statute. The court also agreed that, when a case includes both sexual-harassment-related claims and other claims, the statute blocks arbitration of the entire case rather than only particular claims.

The defendants argued that Delo could not invoke the statute because she had not labeled her claims as sexual-harassment claims. The court rejected that argument, explaining that it examines the substance of the factual allegations rather than the labels attached to legal claims. The court concluded that Delo’s allegations expressly referred to a hostile work environment, a recognized theory of sexual harassment.

The court focused on the New York City Human Rights Law because it applied the most lenient standard. Under that law, a plaintiff alleging a hostile work environment based on sexual harassment need only show that she was treated less well than other employees because of her gender, or that she experienced unwanted gender-based conduct. The court found that Delo’s allegations met that plausibility standard. It relied on the alleged pregnancy-related hiring comment, unequal treatment concerning children in the workplace, Tomlinson’s conduct while Delo was pumping breast milk, her firing, and allegations concerning the company’s treatment of another pregnant employee.

The defendants alternatively argued that Delo’s claim accrued before March 3, 2022. The court explained that a hostile-work-environment claim may include a series of related acts, including acts that are not independently actionable, so long as at least one related act occurs within the relevant period. The court found that Delo’s allegations concerning Tomlinson’s silence and visible anger toward her and the April 8, 2022 workplace policy were not too trivial to contribute to the alleged hostile work environment. Those allegations occurred in the same workplace, within the same year, and were primarily attributed to Tomlinson; the court therefore found them sufficiently related to the earlier allegations.

The court noted that Delo’s termination also occurred after March 3, 2022, but did not rely on the termination to establish accrual because termination is generally treated as a separate act that cannot by itself preserve an otherwise untimely hostile-work-environment claim.

Disposition

Judge Ronnie Abrams denied the defendants’ motion to compel arbitration. The court concluded that Delo had plausibly alleged conduct constituting sexual harassment under the New York City Human Rights Law and that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act therefore blocked arbitration of all her claims. The court ordered the parties to appear for an initial status conference and directed them to file a proposed case-management plan.