In doing so, we note that the "severe or pervasive" test reduces the incentive for employers to create workplaces that have zero tolerance for conduct demeaning to a worker because of protected class status. In contrast, a rule by which liability is normally determined simply by the existence of differential treatment (i.e., unwanted gender-based conduct) maximizes the law's deterrent effect. It is the latter approach—maximizing deterrence—that incorporates "traditional methods and principles of law enforcement," one of the principles by which our analysis must be guided (Committee Report, 2005 NY City Legis Ann, at 537). Permitting a wide range of conduct to be found beneath the "severe or pervasive" bar would mean that discrimination is allowed to play some significant role in the workplace. Both Administrative Code § 8-101 and the Committee Report accompanying the Restoration Act say the analysis of the City HRL must be guided by the need to make sure that discrimination plays no role (2005 NY City Legis Ann, at 537), a principle again much more consistent with a rule by which liability is normally determined simply by the existence of unwanted gender-based conduct. Finally, the "severe or pervasive" doctrine, by effectively treating as actionable only a small subset of workplace actions that demean women or members of other protected classes, is contradicted by the Restoration{**61 AD3d at 77} Act principle that the discrimination violations are per se[*14]"serious injuries" (id.).[FN23]
Here again, a focus on differential treatment better serves the purposes of the statute.