Case Law Developments

Controlling caselaw now firmly rejects the only idea that “analysis of City law claims parallels that of state and federal claims” and accepts the guiding principles of 2005’s Local Civil Rights Restoration Act:

(1) interpretations of federal and state civil rights statutues represent a floor below which the City Human Rights Law cannot fall, not a ceiling above which it cannot rise; and

(2) the City Human Rights Law must be interpreted independently of its federal and state counterparts in such a way as to accomplish the “uniquely broad and remedial” purposes of the local law. 

The following are some of the most important cases that have taken account of the comprehensive 1991 amendments to the City Human Rights Law, recognized the commands of the Restoration Act, or both. If you have time for only three, read Williams, Bennett, and Albunio.

Jacobsen v. New York City Health and Hospitals Corp.
Broad disability coverage; burden of proof; consequence of failure to engage in interactive process. 22 N.Y.3d 824, 988 N.Y.S.2d 86 (N.Y. 2014)

Any impairment constitutes a disability under City HRL. 22 N.Y.3d at 834. Burden is on employer, not plaintiff, to show unavailability of an accommodation and to show undue hardship, citing Phillips and Romanello. Id. at 835. Summary judgment for employer foreclosed where there is no interactive process in respect to requested accommodation, citing Phillips and Romanello.  Id. at 837-38.

Employer’s failure to engage in interactive process does not compel finding in favor of plaintiff (rejecting one of the holdings in Phillips), but ”that failure poses a formidable obstacle to the employer’s attempt to prove that no reasonable accommodation existed for the employee’s disability.” Id. at 838.

Romanello v. Intesa Sanpaolo
Broad definition of disability; cites Phillips, Albunio, and Williams with approval. 22 N.Y.3d 881, 976 N.Y.S.2d 426 (N.Y. 2013)


In disability case raising issue of whether request for indeterminate leave can be reasonable accommodation under City Human Rights Law, State Court of Appeals holds that it can be, affirming the analysis and holding of Phillips (contrary to the State Human Rights Law, the City Law defines disability solely in terms of the existence of an impairment and requires the covered entity to prove as an affirmative defense that the employee could not, with reasonable accommodation, satisfy the essential requisites of the job).
 
Court also affirms its holding in Albunio that every provision of the City Human Rights Law must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Court also cites Williams with approval. 

Mihalik v. Credit Agricole Cheuvreuz North America, Inc.
Applying Williams in sexual harassment context and in connection with retaliation claim. 715 F.3d 102 (2d Cir. 2013)

Second Circuit vacates district court’s grant of summary judgment in sexual harassment and retaliation case. Under City Human Rights Law, the “severity” or “pervasiveness” of challenged conduct goes only to the question of damages, not liability. The district court had “placed too much emphasis on Williams’s recognition that the NYCHRL should not ‘operate as a “general civility code,”’ and too little emphasis on its exhortation that even ‘a single comment’ may be actionable in appropriate circumstances.” 715 F.2d at 113, 114.

For City Human Rights Law purposes, retaliation claims must be evaluated with a “keen sense of workplace realities” and with the recognition opf the fact that “the ‘chilling effect’ of particular conduct is ‘context dependent.’” 715 F.2d at 112, 116 (internal citations omitted).

Summary judgment is only appropriate in City Human Rights Law cases where “the record establisheds as a matter of law that a reasonable jury could not find the employer liable under any theory [McDonnell Douglas, mixed motive, or otherwise].” 715 F.2d at 113.

Sotomayor v. City of New York
Discrete acts can be basis of continuing violation. 862 F.Supp.2d 226 (E.D.N.Y. 2012)

“Otherwise time-barred discrete acts can be considered timely ‘where specific and related instance of discrimination are permitted by the employer to continue unremediated for so long as to amount to a discriminatory policy or practice.” 862 F.Supp.2d at 250 (internal citations omitted), following the conclusion in Williams that there is no reason to suppose that the City Council would have wanted the more generous continuing violations doctrine that existed at the time of the comprehensive 1991 amendments to the City Human Rights Law to have been ratcheted down by the Supreme Court’s narrrowing of that doctrine in Morgan (in 2002).

Fufero v. St. John's University
Summary judgment analysis. 94 A.D.3d 695, 941 N.Y.S.2d 639 (2nd Dept. 2012)

Appellate Division, Second Department, adopts Bennett.

Bennett v. Health Management Systems, Inc
Distinct summary judgment analysis under City Human Rights Law. 92 A.D.3d 29, 936 N.Y.S.2d 112 (1st Dept. 2011)

Appellete Division, First Department, concludes that “the identification of the framework for evaluating the sufficiency of evidence in discrimination cases does not in any way constitute an exception to the Section 8-130 rule that all aspects of the City HRL must be interpreted to accomplish the uniquely broad and remedial purposes of the law,” and for the court to “create an exemption from the sweep of the Restoration Act for the most basic provision of the City HRL  that it is unlawful ‘to discriminate’  would impermissibly invade the legislative province.” 92 A.D.3d at 34-35, 936 N.Y.S.2d at 116-17.

The court ruled that the Supreme Court’s summary judgment standard failed to take sufficiently into account factors required to achieve the City Human Rights Law’s uniquely broad and remedial purposes: “(a) the traditional power to be accorded to the inference of wrongdoing that arises from evidence of consciousness of guilt; (b) the importance of deterring a defendant’s proffer of false reasons for its conduct; and (c) the impropriety of a court weighing the strength of evidence in the context of a summary judgment motion.” 92 A.D.3d at 42, 936 N.Y.S.2d at 122.

Bennett holds that:

“(1) If a court were to find it necessary to consider the question of whether a prima facie case has been made out, it would need to ask the question, ’Do the initial facts described by the plaintiff, if not otherwise explained, give rise to the McDonnell Douglas inference of discrimination?’”

“(2) Where a defendant has put forward evidence of one or more non-discriminatory motivations for its actions, however, a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out. Instead, it should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable under any of the evidentiary routes- McDonnell Douglas, mixed motive, “direct” evidence, or some combination thereof.”

“(3) If the plaintiff responds with some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, and thus such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied.” 92 A.D.3d at 45, 936 N.Y.S.2d at 124.

The court also disapproved of federal district court decisions that were ruling too easily that the Williams affirmative defense in harassment cases has been made out. The court reiterated that the Williams affirmative defense be treated as the “narrowly drawn affirmative defense” it was intended to be, that it was important for “borderline” fact patterns be allowed to be heard by a jury, and it be understood that one could “easily imagine a single comment that objectifies women being made in circumstances where [the] comment would, for example, signal views about the role of women in the workplace and be actionable.”  92 A.D.3d at 44, fn. 16,  936 N.Y.S.2d at 123. The court rejected district court decisions in Wilson and Mihalik for, among other things, “ignoring the Williams holding” and relying on cases that “nominally acknowledge Williams but ignore its teaching.” 

Nelson v. HSBC Bank USA
Retroactivity of Restoration Act; rejection of "severe or pervasive" in harassment context. 87 A.D.3d 995, 929 N.Y.S.2d 259 (2nd Dept. 2011)

Appellate Division, Second Department, adopts Williams and rules that provisions of Restoration Act are to be applied retroactively. 

Albunio v. City of New York
City HRL intended to be maximally victim-friendly. 16 N.Y.3d 472, 922 N.Y.S.2d 244 (N.Y. 2011)

State Court of Appeals holds that every provision of the City Human Rights Law must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” 16 N.Y.3d at 477-78, 922 N.Y.S.2d at 246.

Zakrzewska v. The New School
Employer strictly liable for conduct of supervisors and managers. 14 N.Y.3d 459, 902 N.Y.S.2d 838 (N.Y. 2010)

The State Court of Appeals concluded that the plain lagnuage of section 8-107(13)(b) of the City Human Rights Law “creates an interrelated set of provisions to govern an employer’s liability for an employee’s discriminatory conduct in the workplace” that “simply doesn’t match up with theFaragher-Ellerth defense.” 14 N.Y.3d at 479, 902 N.Y.S.2d at 842. In the employment context, for acts of those employees or agents who exercised managerial or supervisory authority, the section provides for strict liability, and the existence of anti-discrimination policies and procedures can only go to the question of whether civil penalties (administratively) or punitive damages (in a civil action) should be mitigated. 14 N.Y.3d at 479-80, 902 N.Y.S.2d at 842. The court ruled that the statutory text made clear that the provision, contrary to the employer’s position, applied to all supervisors and managers. 14 N.Y.3d at 481, 902 N.Y.S.2d at 843. 

It is only in the context of actions of non-supervisory co-workers that the existence of anti-discrimination policies and procedures can be considered in determining liability (and only where the conduct is not known to managers or supervisors but should have been). 14 N.Y.3d at 480, 902 N.Y.S.2d at 842. Note: The question of vicarious liability of an employer in the housing and public accommodations was not before the court. In those areas, section 8-107(13)(a) makes clear, there are no exceptions to strict liability for the act of any employee or agent. 

Weiss v. JPMorgan Chase & Company
Mixed motive analysis applicable in age discrimination cases brought under City HRL. 2010 WL 114248 (S.D.N.Y. 2010)

Mixed motive analysis (discrimination was “a motivating factor”), applicable to all City Human Rights Law cases, declining to apply Supreme Court’s Gross decision that had required for federal purposes the showing of but-for causation in age discrimination cases. Result required both by independent interpretation of text of City Law and by fact that reducing City Law below Title VII floor for some claims would violate Restoration Act’s requirement that federal law served as floor below which City Law cannot fall.

Loeffler v. Staten Island University Hospital
City Law must be construed independently; federal and state only a base below which City Law cannot fall. 582 F.3d 268 (2d Cir. 2009)

Second Circuit rules that the Restoration Act “confirm[ed] the legislative intent to abolish ‘parallelism’ between the City HRL and federal and state antidiscrimination law…” 582 F.3d at 278. The court described the City Human Rights Law as having a ”one-way ratchet” where state and federal enactments serve only as a floor for coverage, not the ceiling. Id.

Phillips v. City of New York
No accommodation categorically excluded. Burden of proof on defendant to demonstrate plaintiff couldn't do job even with accommodation. 66 A.D.3d 170, 884 N.Y.S.2d 369 (1st Dept, 2009)

An individualized interactive process to consider a request for a reasonable accommodation to the needs of a person with a disability is required by the City Human Rights Law. Failure to provide such a process is a violation of section 8-107(15)(a). 66 A.D.3d at 176-77, 884 N.Y.S.2d at 374. [Note: this holding of Phillips was subsequently rejected by Jacobsen v. New York City Health and Hospitals Corp., 988 N.Y.S.2d 86, 96 (N.Y. 2014); Jacobsen relied on Phillips in all other respects.]

Unlike the State HRL, the issue of the ability to perform essential requisites of a job is not bound upin the definitions of disability or reasonable accommodation. The City HRL defines “disability” purely in terms of impairments…” 66 A.D.3d at 181, 884 N.Y.S.2d at 377.

The court explained additional City HRL differences from the State HRL and the ADA. “First, there is no accommodation (whether it be indefinite leave time or any other need created by a disability) that is categorically excluded from the universe of reasonable accommodation. And unlike the ADA, there are no accommodations that may be ‘unreasonable’ if they do not cause undue hardship.” 66 A.D.3d at 182, 884 N.Y.S.2d at 378.

Finally, the court held that the plain language of the statute [section 8-115(b)] provides that it was the “defendants who had the obligation to prove that plaintiff could not, with reasonable accommodation, ‘satisfy the essential requisites’ of the job. As such, the pleading obligation in relation to this element was on defendants, not plaintiff.” 66 A.D.3d at 183, 884 N.Y.S.2d at 378 (emphasis added).

Williams v. New York City Housing Authority
61 A.D.3d 62, 872 N.Y.S.2d 27 (1st Dept, 2009)

Thorough explication of the requirements of the Restoration Act, rejection of “carbon copy” school of jurisprudence, and abandonment of the “severe or pervasive” standard in harassment cases.  “[T]he Restoration Act notified courts that (a) they had to be aware that some provisions of the City HRL were textually distinct from its State and federal counterparts, (b) all provisions of the City HRL required independent construction to accomplish the law’s uniquely broad purposes and (c) cases that had failed to respect these differences were being legislatively overruled.” 61 A.D.3d at 67-68, 872 N.Y.S.2d at 31.

“Experience has shown that there is a wide spectrum of harassment cases falling between ‘severe or pervasive’ on the one hand and a ‘merely’ offensive utterance on the other. The City HRL is now explicitly designed to be broader and more remedial than the Supreme Court’s ‘middle ground,’ a test that had sanctioned a significant spectrum of conduct demeaning to women.  With this broad remedial purpose in mind, we conclude that questions of ‘severity’ and ‘pervasiveness’ are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability…” 61 A.D.3d at 77, 872 N.Y.S.2d at 38.

The court also clarifies the broad scope of the local law’s retaliation provisions and rejects a narrow interpretation of continuing violation doctrine.  

Dybdal v. Variable Life Insurance Company and AIG
City HRL more plaintiff-friendly than Title VII (race discrimination). 2007 WL 4118944 (E.D.N.Y. Nov. 19, 2007)

“Race discrimination claims brought under the New York City Human Rights Law are reviewed under a more deferential standard [for plaintiffs] than those brought under Title VII.”  Id. at *9.

Pugliese v. Long Island R.R. Co.
Title VII is floor, not ceiling; it doesn't control. Vicarious liability. 2006 WL 2689600 (E.D.N.Y. Sept. 19, 2006)

While claims brought under the City Human Rights Law have traditionally been subject to the same analytical framework as claims brought under Title VII, the Restoration Act requires independent construction and permits the use of federal and state law interpretations only as a floor, not a ceiling [citing Restoration Act, § 1].  “Thus,” the court concludes, “Title VII jurisprudence is a useful guide for CHRL claims, but does not control the analysis of CHRL claims.”  Id. at *11.

The court goes on to hold that defendant “may be held vicariously liable for the actions of  employee Greer because, as [plaintiff’s] former manager, she exercised managerial or supervisory responsibility. See § 8-107(13)(b)(1).” Id. at *12.

Finally, the court states as an additional reason justifying the denial of summary judgment on a sex harassment claim that: “the CHRL must be interpreted broadly and independently. See N.Y.C. Local Law No. 85 § 7.  Notably, although Title VII analysis is instructive in CHRL matters, the breadth and scope of CHRL will often yield results different from Title VII.”  Id. at *13.