Hamburger, Maxson, Yaffe & McNally, LLP December 5, Original Content

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1 HMYLAW Hamburger, Maxson, Yaffe & McNally, LLP December 5, 2017 Original Content A Wink, A Leer And A Blown Kiss Do Not Create A Hostile Work Environment Bringing A Contract Rescission Action Is NOT An Anticipatory Repudiation Of That Contract Retailer s Website Was A Place of Public Accommodation Under the State s Human Rights Law A Wink, A Leer And A Blown Kiss Do Not Create A Hostile Work Environment In Irreara v. Humpherys, a male graduate student brought an action against the University of Rochester s Eastman School of Music and male Chairperson of Eastman s Piano Department, claiming among other things, a violation of Title IX of the Education Amendments of 1972, alleging that the Chairperson sexually harassed him and that the University was aware of the harassment but failed to act. On an appeal by the student from a federal Court s dismissal, the Second Circuit Court of Appeals held that the continuing violations exception to the threeyear statute of limitations period did not apply to the student s Title IX claims, and that the student s allegations which fell within the three years were insufficient to state Title IX hostile educational environment claim. Title IX is a federal statute that provides a remedy to a student who is subjected to sexual harassment by a teacher or professor at an educational institution receiving federal funds. Here, the Second Circuit recognized that one can establish a hostile educational environment claim under Title IX if he demonstrates that he subjectively perceived the environment to be hostile or abusive and that the environment objectively was hostile or abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his educational environment. In addition, an educational institution will be liable under Title IX if the plaintiff establishes that a school official with authority to address the alleged harassment and to institute corrective measures had actual knowledge of the discrimination and failed to adequately respond. The Court acknowledged that statute of limitations for a Title IX claim based on conduct occurring in New York is three years.

2 According to the original complaint, in the spring of 2010, the Chairperson made an unwanted sexual advance toward the student by caressing the student s shoulder and by rubbing his hands up and down the student s arms for approximately four minutes during a piano lesson. The student further alleged the Chairperson also leaned his crotch into the student s back during the same lesson, and that over a year later, in April and November 2011, the Chairperson caused the panel of professors judging the student s first two solo piano recitals to fail the student in retaliation for having rejected the Chairperson s claimed sexual advances. The Court held that because the student filed his action on June 24, 2015, over three years after any of the alleged conduct took place, his Title IX claims premised on the Chairperson s actions would be untimely. However, the student in an amended complaint, alleged that the Chairperson took additional actions against him between 2012 and 2014, when the Chairperson winked at him, blew kisses at him, raised his eyebrows at him, and looked up and down at him in a sexual manner when they encountered each other in Eastman s common areas. The student claimed that these additional actions established a continuing violation of Title IX sufficient to render all of Humpherys actions, including the 2010 and 2011 actions, timely. The District Court held that these new allegations failed to establish a continuing violation for purposes of the statute of limitations and dismissed the Title IX claims stemming from the 2010 and 2011 alleged conduct as untimely and further held that the student s allegations about Humpherys facial expressions did not plausibly establish stand-alone Title IX claims. The Second Circuit agreed. The Court held that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. With respect to hostile educational environment claims, however, which depend upon proof of repeated conduct extending over a period of time, a sexually offensive incident within the limitations period permits consideration of an incident preceding the limitations period only if the incidents are sufficiently related. Here, the Court determined that the unwanted sexual touching and retaliation allegedly committed by the Chairperson in 2010 and 2011 (outside the statute of limitations) and the allegedly sexual facial expressions made by the Chairperson between 2012 and 2014 (within the statute of limitations) were discrete acts of harassment separated by multiple years of inactivity. Therefore we conclude that the continuing violation exception does not apply and the District Court correctly held that the student s claims concerning Humpherys 2010 and 2011 acts are barred by the three-year statute of limitations. As for the student s timely allegations regarding the Chairperson s facial expressions, the Court held that they not plausibly establish a stand-alone hostile educational environment claim. The student did not plausibly allege that the Chairperson s sporadic winks, leers, and blown kisses were sufficiently severe or pervasive to alter the conditions of his educational environment. Accordingly, the District Court correctly dismissed Irrera s Title IX hostile educational environmental claim arising out of Humpherys 2012 to 2014 behavior.

3 Bringing A Contract Rescission Action Is NOT An Anticipatory Repudiation Of That Contract In a July Newsletter of this year, we wrote about the case of Princes Point v. Muss, in which an Appellate Court recently addressed a question concerning the rights of parties under a purchase and sale agreement for real estate. The first question raised on that appeal was whether a prospective purchaser of real property anticipatorily breached a contract of sale by commencing an action against the seller for rescission of the contract before the closing date. The Appellate Court recognized that an anticipatory breach, or repudiation, occurs when a party to a contract unequivocally communicates to its counterpart before performance is due, by a statement or voluntary affirmative act, that it will avoid performance of its contractual duties. However, it went on to state that there is an apparent absence of case law regarding whether the commencement of an action, particularly one seeking rescission, is itself an anticipatory breach. Although there is precedent that an action seeking a declaratory judgment does not constitute an anticipatory breach, the Court reasoned that this proposition is a rational one, because a declaratory judgment action merely seeks to define the rights and obligations of the parties. If a plaintiff succeeds in obtaining a declaratory judgment, he or she may then proceed to the performance of duties under the contract (as defined by the judgment). An action seeking rescission of a contract is markedly different. In contrast to a declaratory judgment, a plaintiff who succeeds in obtaining rescission can no longer perform: his or her contractual duties will have evaporated. Indeed, by bringing this action for rescission, plaintiff sought to have a court declare the contract void from its inception and to put or restore the parties to status quo. Accordingly, the Court concluded that because a rescission action unequivocally evinces the buyer s intent to disavow its contractual obligations, the commencement of such an action before the date of performance constitutes an anticipatory breach. On appeal to our highest court, however, the Court of Appeals reversed the Appellate Court. The Court of Appeals cautioned that for there to be an anticipatory repudiation, the intent not to perform must be positive and unequivocal. It found that, in light of the numerous changes in the outside closing date, it could not conclude that the purchaser s commencement of the action evidenced a repudiation of the contract. Acknowledging the same issue as raised by the Appellate Court, the Court of Appeals agreed with the Appellate Court s conclusion that the commencement of a declaratory judgment action does not constitute an anticipatory breach because a declaratory judgment action merely seeks to define the rights and obligations of the parties. However, it disagreed with the Appellate Division s conclusion that a rescission action is markedly different from a declaratory judgment action, reasoning as follows:

4 To be sure, this action (one for rescission and/or Reformation of the purchase agreement based on defendant s purported misrepresentation with respect to the condition of the property) and the declaratory judgment action necessarily would produce different results. This action is one based on the terms under which the amendments to the contract were entered, and essentially seeks to nullify those terms. A declaratory judgment action would produce a ruling as to the rights of the parties under the terms of the contract, and essentially would determine the meaning of those terms. Nevertheless, in this context specifically, where the amended complaint seeks, among other things, reformation of the amendments to the contract and specific performance of the original agreement there was no positive and unequivocal repudiation. There is no material difference between this action and a declaratory judgment action. At bottom, both action seek a judicial determination as to the terms of a contract, and the mere act of asking for judicial approval to avoid a performance obligation is not the same as establishing that one will not perform that obligation absent such approval. Retailer s Website Was A Place of Public Accommodation Under the State s Human Rights Law In Andrews v. Blick Art Materials, LLC, a legally blind consumer brought a class action against a large retailer that sells art supplies and which has an online presence through which it sells art supplies directly to consumers for home delivery, alleging disability discrimination in violation of federal, State, and local disability laws arising from the consumer s inability to purchase art products on the retailer s website. The retailer, Blick Art Materials, moved to dismiss the complaint for failure to state claim. As for the State claim, the federal court held, as a matter of first impression, that the retailer s website was a place of public accommodation under the New York State Human Rights Law. According to the allegations of the complaint, Blick owns and operates nationwide brick-andmortar retail stores that sell art supplies. There are seven Blick stores in New York State. Blick also owns dickblick.com, through which it sells art supplies directly to consumers for home delivery. The complaint further alleges, that although there are well-established guidelines for making websites accessible to blind people, dickblick.com does not follow those guidelines, rendering

5 the website inaccessible to those who are visually impaired. The Court said that although the plaintiff does not allege that he was unable to purchase art supplies from Blick, due to Dickblick.com s inaccessibility, blind customers must... spend time, energy, and/or money to make their purchases at a Blick store... If Dickblick.com was accessible, a blind person could independently investigate products and programs and make purchases via the Internet as sighted individuals can and do. The Court itself reviewed Blick s website which appears to offers goods and services to the public independent of any goods or services being offered at retail locations. For example, a coupon code that appeared on a banner at the top of the webpage promises free shipping and discounts on orders of items of a certain value specified that the offer was not valid at Blick Retail stores. (last visited on July 18, 2017). The website also contains a disclaimer stating that prices, promotions, and availability may vary by store, catalog, and online. (last visited on July 18, 2017). In determining that the plaintiff stated a cause of action for disability discrimination under New York State law, the Court first turned to the language of the statute itself: It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the... disability... of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof[.] The law defines the term place of public accommodation, resort or amusement as including wholesale and retail stores and establishments dealing with goods or services of any kind. A discriminatory practice includes: a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations[, or] a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden. Auxiliary aids and services include qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments; acquisition or modification of equipment or devices; and others similar devices and actions.

6 The Court noted that whether a website itself is a place of public accommodation or an accommodation, advantage, facility or privilege of a retail store appears to be an issue of first impression, and turned to several opinions of the State s highest court in its analysis. It recognized that the New York State Court of Appeals has ruled that the provisions of the Human Rights Law must be liberally construed to accomplish the purposes of the statute, and that over time, the New York State Legislature has repeatedly amended the statute to expand its scope, specifying that the list of places of public accommodation is illustrative, not specific. This history provides a clear indication that the Legislature used the phrase place of public accommodation in the broad sense of providing conveniences and services to the public and that it intended that the definition of place of accommodation should be interpreted liberally. The statutory language underlying the term place of public accommodation states two concepts, [1] the idea of public accommodation in the broad sense of providing conveniences and services to the public, and [2] the idea of place. Here, only the second concept, place, was disputed. Turning again to a New York Court of Appeals decision, the federal Court recognized that the State Court of Appeals took an expansive view of what a place may be. The Court adopted the definition of place given by a New Jersey appellate court in National Organization for Women, Essex County Chapter v. Little League Baseball, Inc. In that case, the New Jersey court rejected Little League s argument that it is not a place of public accommodation because it is a membership organization which does not operate from any fixed parcel of real estate, noting that the statutory noun place (of public accommodation) is a term of convenience, not of limitation, that... is employed to reflect the fact that public accommodation are commonly provided at fixed places. The Little League court continued: But a public conveyance, like a train, is a place of public accommodation although it has a moving situs. The place of public accommodation in the case of Little League is obviously the ball field at which tryouts are arranged, instructions given, practices held and games played. The statutory accommodations, advantages, facilities and privileges at the place of public accommodation is the entire agglomeration of the arrangements which Little League and its local chartered leagues make and the facilities they provide for the playing of baseball by the children. The Court of Appeals of New York used the same language as the Little League court, agreeing that the term place in the New York statute was a term of convenience, not limitation. The New York court further noted that the statute listed places of accommodations which have no fixed place of operation but supply their services at a variety of locations, and that the statute also applies to establishments dealing with goods or services of any kind. Analytically, such establishments may discriminate by denying goods and services without denying individuals access to any particular place, e.g., home delivery service or services performed in the customer s home and mail order services. Accordingly, the federal Court concluded here that New York s broad reading of the term place and the presumption that the NYSHRL should be interpreted consistently with the ADA

7 suggests a finding that dickblick.com is a place of public accommodation under the State s Human Rights Law. This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such. Original Content