McDonald’s Franchisee on 42d Street May Face Liability for Harassment of Gay Customers

New York Supreme Court Justice Doris Ling-Cohan has rejected a motion to dismiss a discrimination claim brought by two gay men who claim to have been harassed by security guards at a McDonald's Restaurant on 42nd Street in Manhattan on November 26, 2008.  The two men, Bowling and Barton, sought damages for discrimination and infliction of emotional distress.  Justice Ling-Cohan dismissed the emotional distress claim in her ruling filed on July 12, 2011.

According to their complaint, Bowling and Barton entered the McDonalds at 220 W. 42nd Street and placed their order.  While waiting for their order to be filled, they exchanged kisses and found themselves confronted by two security guards, who subjected them to a stream of foul-mouthed anti-gay slurs. 

According to the brief filed in opposition to the motion to dismiss their case, they claimed that they "were repeatedly and maliciously intimidated by the guards through their use of the slur 'faggot' and the threats made against them, and which forced them out of the McDonald's restaurant, including 'faggots aren't allowed in this McDonald's; faggots like you get killed in places like this; I'll kill you faggot; I'll kill you; I'll take you outside and kill your faggot ass; and get that faggot shit out of here."  Some other customers called the police, who shortly arrived.  Bowling and Barton claim that a McDonald's employee asked them to wait outside, and another employee later brought their order out to them.

They sued the franchise owner of the restaurant, 220 W. 42nd St. LLC, ISK Manhattan, Inc., and the subcontractor that employs the security guards, Security USA, Inc.  Their primary claim was a violation of the State Human Rights Law provision forbidding sexual orientation discrimination against customers by places of public accommodation.  They also charged a violation of another provision in the Human Rights Law concerning "boycotts, blacklisting and refusal to deal" based on sexual orientation, and claimed damages for intentional infliction of emotional distress.

The McDonald's operator argued that it should not be held responsible for what happened to the two men, claiming that the complaint failed to specify any discriminatory acts perpetrated or condoned by the company.  But, countered Justice Ling-Cohan, "If an employer fails even to discipline an employee in response to that employee's discriminatory conduct, the employer may be found to have condoned such improper conduct."  She noted that the operator hadn't presented any evidence to contradict the story presented by the plaintiffs, "such as proof of a non-discriminatory policy being in place prior to the incident, or discipline of the guards who actually perpetrated the alleged improper conduct," so it would not be appropriate to dismiss the complaint prior to any pre-trial discovery.

Security USA argued that it should not be held liable for the actions of its employees under the usual theory of "respondeat superior," under which employers are held liable for harms committed by their employees while they are working, because the behavior alleged in this case was "not within the scope" of their employment and was personally motivated.  Justice Ling-Cohan found that Security had failed to cite any cases supporting such an argument.  "There is no evidence that Security did not condone the improper actions of the security guards in its employ," she wrote, and "it may be liable for its own inaction."

However, she found the statutory provision on boycotting and picketing was not intended to apply to this kind of case, and the facts alleged were inadequate to support a claim of damages for intentional infliction of emotional distress as a separate claim apart from the discrimination claim under the Human Rights Law.  New York courts have set a very high bar for claims of intentional infliction of emotional distress, requiring outrageous conduct perpetrated over a period of time, a virtual campaign of harassment and humiliation.  In this case, five minutes of offensive and threatening language was deemed insufficient to meet the test set by the state's appellate courts.  Besides, she found, the emotional distress claim was first asserted after the one-year statute of limitations had passed.


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