Pashman Stein Wins Motion in Discrimination Case at U.S. District Court for the Southern District of New York. Court Denies L'Oreal USA and Bloomingdale's Inc.'s Motions for Summary Judgment in Cas

Pashman Stein Wins Motion in Discrimination Case at U.S. District Court for the Southern District of New York. Court Denies L'Oreal USA and Bloomingdale's Inc.'s Motions for Summary Judgment in Cas

April 14, 2021
Attorneys

On February 18, 2021, the U.S. District Court for the Southern District of New York denied the defendants’ motions for summary judgment in Kang v L'Oreal and Bloomingdale’s, a case in which J. John Kim, Esq. and Timothy P. Malone, Esq. of Pashman Stein Walder Hayden represent plaintiff Hye Sun (“Jennifer”) Kang. The case alleges discrimination based on race, ethnicity or national origin in violation of the Civil Rights Act and the New York State Human Rights Law, as well as negligent misrepresentation against Bloomingdale’s Inc.

The court’s decision allows Kang to proceed to a jury trial, in which she is seeking damages against both L’Oreal and Bloomingdale’s. In denying the retailers’ motion, the court said:

  • “a jury could conclude that Kang's race played a role in Bloomingdale’s decision to focus on her and to accuse her of knowingly being involved in the fraud, giving rise to an inference of discriminatory intent” and 
  • “... a reasonable jury could... conclude that Bloomingdale’s discriminated against Kang based on her race.”

Kang is of Korean descent and was a sales associate for L’Oreal and worked at the Bloomingdale’s in New York City. Without any warning or notice, in April of 2017 she was detained by the Bloomingdale’s Asset Protection department, accused of being part of a Chinese criminal fraud ring with a Chinese client, and forced to sign a written statement that she had violated company policies, after being told exactly what to write. 

The court pointed out that Kang was asked whether the other people in the fraud ring were “’also Asian,’ whether she knew [the fraudster] Chen and his crew from before, and whether the spoke in English or in some other language. . . . Kang felt it was necessary to explain that she did not personally know Chen or his associates, and to repeat twice that she was not related to them.”

Upon exiting the room, however, she was immediately confronted by NYPD who arrested, charged and processed her, and she spent the night in a prison holding cell. With no criminal history whatsoever, she was transferred to jail at Riker’s Island, where she spent 12 hours in prison, while her family scrambled to post her bail. Months later, the DA unilaterally dropped all charges against Kang, presumably when they discovered that she was not of Chinese descent and was not involved in any fraudulent scheme with the Chinese customer. Despite the DA’s action, she was terminated from her employment.

Hearing Bloomingdales’ and L’Oreal’s claims that its investigators treat all subjects the same without regard to race, the court remarked: 

“The problem is that law enforcement might say the same thing, oh I view everybody walking down the street the same way. But if the reality is the police are disproportionately stopping young black men, you can sort of conclude from that that maybe there is a racial aspect of this. Here you're saying asset protection looks at this all differently, and yet, what I'm looking at, one step removed, is asset protection seems to have had a very different reaction when the fraudster and the saleslady were of the same race and a very different reaction from the fraudster and the salesperson who were of a different race. . . . Same race, they had one reaction; different race, they had a different reaction. 

The order can be read here.