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Sotomayor’s dissent in Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), is perhaps her most strongly worded opinion addressing discrimination. Plaintiff Ray Gant, who was transferred mid-year from first grade to kindergarten because of academic difficulties, alleged that the school was deliberately indifferent to racial hostility that he suffered and discriminated against him through the transfer. Sotomayor agreed with the majority’s decision to dismiss the racial harassment claim, but she rejected their conclusion that the transfer was not race discrimination. In her view, the transfer was “unprecedented and contrary to the school’s established policies”: white students having academic difficulties, she noted, received compensatory help, whereas Gant – the “lone black child” in his class – was not given an “equal chance” but was instead demoted to kindergarten just nine days after arriving at the school.

However, in Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), Sotomayor wrote an opinion that dismissed claims brought by a disabled black woman, who alleged that her employer did not give her the same accommodations for her disabilities that it provided to white employees, on the ground that the plaintiff had failed to prove that she was similarly situated to the white employees. Similarly, in Williams v. R.H. Donnelly Co., 368 F.3d 123 (2004), she wrote an opinion holding that an employee alleging racial (as well as gender) discrimination had not proven she was the victim of discrimination when her employer declined to create a position for her when the employer had never created a position for any particular employee.

In two cases, Sotomayor has voted to sustain claims alleging a hostile work environment. In Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), she wrote for the panel in a case brought by a Hispanic woman alleging, inter alia, claims arising from a hostile work environment, failure to promote, and retaliation. The Second Circuit affirmed the district court’s dismissal of the failure-to-promote and retaliation claims but reversed the district court’s decision granting summary judgment on the hostile work environment claim. Citing the allegations of racial slurs by the plaintiff’s supervisor and sexual harassment, as well as the plaintiff’s assertion that she was fired “under the pretext of fighting in the workplace after she was physically beaten and sexually assaulted,” the panel acknowledged that “Cruz might have stated her claim of hostile work environment harassment more artfully,” but emphasized that “the essential elements of the charge do appear in the complaint.” And, the panel continued, the “physically threatening nature of [the supervisor’s] behavior, which repeatedly ended with him backing Cruz into the wall . . . brings this case over the line separating merely offensive or boorish conduct from actionable sexual harassment.” Moreover the opinion noted, “a jury could find that [the supervisor’s] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa.”

And in Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), she was part of a panel that considered hostile work environment and retaliation claims by a female police officer who was allegedly denied desirable shifts, threatened with physical violence, and implicated as a “rat” in front of her male co-workers. The district court had granted the defendants’ motion for judgment as a matter of law. In rejecting Raniola’s hostile work environment claim, it described the “camaraderie of a precinct house,” which lacks “some of the niceties of expression.” With Sotomayor writing, the Second Circuit reversed. In the panel’s view, Raniola had presented enough evidence to take both her hostile work environment and retaliation claims to a jury. With regard to the hostile work environment, it emphasized that during a two-and-a-half-year period, “Raniola was subjected to offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm.” And it rejected the district court’s “conclusion that ‘there is no evidence that plaintiff herself felt that the use of barnyard expletives directed to her or others made her work environment offensive.” Similarly, although all of the disciplinary actions at issue took place after Raniola transferred to another precinct, her former supervisor’s role “in prosecuting her charges, the timing of the prosecution, and the surrounding events all lend support to Raniola’s retaliation claim.”

Sotomayor has rarely written in age discrimination cases. However, she authored a forceful dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), a case involving a minister who filed suit under the Age Discrimination in Employment Act (ADEA) after he was forced by his church to retire at the age of 70. The district court dismissed the claim; on appeal, the Second Circuit reversed, holding that the Religious Freedom Restoration Act (RFRA), which – subject to certain exceptions – prohibits the government from substantially burdening the exercise of religion, had effectively amended the ADEA by providing a defense for ADEA violations. In her dissent, Sotomayor complained that the majority had “violate[d] a cardinal principle of judicial restraint” when it – unnecessarily, in her view – held that the RFRA was constitutional. Moreover, she deemed the panel’s decision to remand the case to the district court for briefing on the RFRA issue “a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties.” Instead, she would have affirmed the district court’s dismissal and held that the ADEA does not apply to employment suits against religious institutions by their leaders.

Sotomayor has been perhaps most sympathetic to claims of discrimination arising from a disability. In Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000), she was the author of an opinion that followed decisions of other circuits applying Title VII’s “mixed motive” analysis to the Americans with Disabilities Act (ADA), holding that the case should be remanded to the district court because the plaintiff satisfied the elements for a prima facie case of discrimination based on disability. And she has twice dissented from the majority’s decision to deny a discrimination claim. In EEOC v. J.B. Hunt Transportation, Inc., 321 F.3d 69 (2d Cir. 2003), she would have held that the plaintiff had made out a prima facie case of disability discrimination because the defendants rejected all applicants for long-haul truck driving who took certain medications. See also Nielson v. Colgate-Palmolive, 199 F.3d 642 (2d Cir. 1999) (citing Goldberg v. Kelly for the proposition that “the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard” and arguing that when “a party exhibits a limited ability to understand a proceeding affecting her rights, the court must undertake even more strenuous efforts to explain the process”)