For HRL liability, therefore, the primary issue for a trier of fact in harassment cases, as in other terms and conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender. At the summary judgment stage, judgment should normally be denied to a defendant if there exist triable issues of fact as to whether such conduct occurred (Administrative Code § 8-107 [1] [a]; see Farrugia, 13 Misc 3d at 748-749 ["Under the City's law, liability should be determined by the existence of unequal treatment, and questions of severity and frequency reserved for consideration of damages" (quoted in Selmanovic, 2007 WL 4563431 at *4, 2007 US Dist LEXIS 94963 at *11)]).[FN27]
[*16]
Farrugia was recently criticized in Gallo for its focus on " 'unequal' treatment," the latter decision insisting that the "severe or pervasive" restriction be applied to City HRL claims just as the restriction is applied to title VII and State HRL claims (585 F Supp 2d at 537). We conclude that the criticism simply does not recognize the City HRL's broader remedial purpose. The Gallo decision states:
"A single instance of 'unequal' treatment (between, say, a man and woman or a homosexual and heterosexual) can constitute 'discrimination,' but may not qualify as 'harassment' of the sort needed to create{**61 AD3d at 79} a hostile work environment. If inequality of treatment were all that the hostile work environment law required, hostile work environment and discrimination claims would merge." (Id. at 537-538.)