By: Walter Gonzalez, Esq. and Ty Hyderally, Esq.

October 15, 2026

Most employees who believe they have been discriminated against do not walk into a lawyer’s office carrying a smoking gun.

There usually is no email specifically saying, “We are terminating you because of your race.” Nor is there a memo admitting that a woman was passed over because management preferred a man. And a supervisor engaging in retaliation rarely sends a text message saying, “I am doing this because you complained to Human Resources.”

Real life is usually messier.

It begins when an employee notices that she is treated differently. Comments are made. An employee complains. Opportunities begin disappearing. A supervisor’s attitude suddenly changes. The negative reviews begin. Responsibilities are taken away. Eventually, the employee is disciplined and/ or terminated.

The employer, of course, has a different explanation. But it also does not necessarily mean the employer gets to end the case before the employee has an opportunity to prove it.  A recent New York appellate decision provides an important reminder of that distinction.

In Morse v. Fortune Society, Inc[1]., decided on August 19, 2026, plaintiff Christina Morse brought claims against her former employer and supervisor alleging, among other things, race and sex discrimination, hostile work environment, and retaliation under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”).

The defendants sought to dismiss those claims pursuant to CPLR 3211[2], asking the court to end significant portions of the lawsuit at its earliest stage. When the trial court refused the defendants appealed.

The Appellate Division, Second Department, affirmed.

Why?

Because there is an important difference between asking whether an employee has sufficiently alleged a legal claim and asking whether the employee has ultimately proven that claim. Those are very different questions.

A Complaint Is the Beginning of the Story, Not the End

The Second Department reiterated a basic rule that can sometimes get lost once lawyers begin arguing over competing versions of events.

When considering a motion to dismiss for failure to state a claim, the court gives the complaint a liberal construction, accepts its factual allegations as true, and gives the plaintiff the benefit of favorable inferences.  Perhaps more importantly, the Court explained that a motion to dismiss concerns the adequacy of the pleading. It does not decide the substantive merits of the lawsuit.

Think about where much of the important evidence may exist. Who has the emails between supervisors discussing the employee? The employer. Who has the performance records of similarly situated coworkers? The employer. Who knows what was discussed behind closed doors before a termination decision? Usually, the employer and its managers.  Who may have records showing whether other employees committed the same alleged offense but received different discipline? Again, the employer.  Discovery exists, in part, because a plaintiff is not expected to possess every piece of evidence sitting inside the defendant’s files before filing a lawsuit.

What Did the Court Find in Morse?

Morse alleged that she had been subjected to disparate treatment based upon her race and sex, experienced a hostile work environment, and suffered retaliation.  The defendants challenged the sufficiency of those allegations.  The appellate court nevertheless concluded that, when the allegations were accepted as true and Morse received the favorable inferences required at this stage, she had sufficiently alleged claims under both the NYSHRL and NYCHRL.  The Court therefore allowed the challenged claims to proceed.  That does not mean that the Court determined Morse had actually been discriminated against.  It means she alleged enough that the case could not properly be decided against her on the pleadings alone.

And while this may sound like a technical distinction, it is anything but that.

 “But My Employer Says There Was Another Reason”

A common reaction employees have when discussing potential discrimination:

• “My employer is just going to say I was fired for performance.”
• “My supervisor will deny saying that.”
• “HR is going to say I misunderstood what happened.”

Litigation would completely inequitable if one side could defeat a claim merely by disagreeing with the other side’s allegations.

The harder question is what the evidence eventually shows.

• Was the employee actually performing poorly, or did alleged “performance problems” suddenly appear after a complaint?
• Were other employees held to the same standard?
• Were policies enforced consistently?
• What was being said internally?
• Do the documents match the explanation eventually offered for the employment decision?
• Does the timeline make sense?
• And perhaps most importantly: what changed?

These are factual questions and depending on the case, answering them may require documents, interrogatories, depositions, testimony from witnesses, and other discovery.

 Discrimination Is Often Proven Circumstantially

Employees sometimes believe they need direct proof of discriminatory intent before speaking with an attorney.  They do not.  Employment discrimination can be proven through circumstantial evidence.  Sometimes the evidence is obvious. Often it is a collection of smaller facts that only become meaningful when viewed together, like:

• A suspicious timeline.
• Different treatment of comparable employees.
• Changing explanations.
• A sudden deterioration in previously good performance reviews.
• Comments by decisionmakers.
• Departure from normal company procedures.
• A complaint followed closely by discipline.

One fact standing alone may mean very little. Several facts together may tell a very different story.  This is why employees should be careful about deciding for themselves that they “cannot prove” discrimination simply because nobody expressly admitted to it. The absence of a confession is not the absence of evidence.

 New York Employees Have Significant Protections

The NYSHRL prohibits employers from discriminating against employees based upon protected characteristics that include race and sex.[3] Employees working within New York City may also receive the protections of the NYCHRL, which is deliberately protective and generally requires courts to consider whether an employee was treated less well because of a protected characteristic.[4]

Both laws also protect employees against unlawful retaliation for protected activity.  Whether any particular workplace event violates those laws necessarily depends upon the facts.

But Morse reinforces an important principle: where a plaintiff has adequately alleged discrimination, hostile work environment, or retaliation, an employer cannot transform an early motion to dismiss into a trial over whose version of events should ultimately be believed.

There will be time for evidence.

There will be time for competing explanations.

There will be time to determine what actually happened.

But first, in a properly pleaded case, the employee gets the opportunity to find out.

And sometimes, that is precisely what discovery is for.

If you have questions regarding your rights as an employee, you should seek an experienced attorney who concentrates in employment law. Our firm has been concentrating in employment law for over twenty-three (23) years!

En nuestra firma hablamos español. This blog is for informational purposes only. It does not constitute legal advice and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice regarding your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state or jurisdiction.

[1] Morse v. Fortune Society, Inc., 2026 NY Slip Op 05021 (App. Div. 2d Dep’t Aug. 19, 2026).

[2] https://www.nysenate.gov/legislation/laws/CVP/3211

[3] N.Y. Exec. Law § 296.

[4] N.Y.C. Admin. Code § 8-107