Justice Peter Moulton

Bailey sought to annul a decision by New York state’s Division of Human Rights finding no probable cause to support her claim that her employer, Libeco, engaged in unlawful employment discrimination based on gender. Libeco cross-moved for dismissal. The state also sought dismissal. Bailey alleged the state’s decision contained inaccuracies and failed to address her claim as “sex plus” discrimination. She argued she was the only employee at Libeco with children, and was discriminated against for that fact, including being demoted with a reduction in pay but not responsibilities. Libeco denied the claim, noting Bailey did not wish to travel extensively, so she refused a sales manager position. It stated Bailey’s position was eliminated, but they offered her a customer service manager position, taking her laptop and BlackBerry as the items were only offered for travel positions. The court ruled the state’s decision must be vacated as arbitrary, and remanded as it erred in concluding Bailey’s complaint of bias for having children was “familial status,” not gender discrimination, thus the state lacked jurisdiction. But it stated a claim for “sex plus” was within the agency’s jurisdiction as “sex plus” is a form of sex discrimination.