It is still very easy to find judges who either haven’t bothered to read the City Human Rights Law, or who, having read it, have decided that they’ll ignore it. As such, decisions stating that “analysis of City law claims parallels that of state and federal claims” continue to be cranked out. See examples of such judicial lawlessness here.
There is, however, some slow progress being made. In the two years since the Local Civil Rights Restoration Act was passed, some federal and state judges have begun to realize that the legislation firmly rejected rote parallelism.
Please be sure to use the cases discussed below with caution: even courts reciting the principle of independence do not necessary follow through on an independent local law analysis of all of the issues in the case.
Sanabria v. M. Fabrikant & Sons, Inc., Index. No. 113378/2002 (Sup. Ct. N.Y.Cty. March 21, 2008). Court, heeding admonition of Restoration Act to read the text of the Human Rights Law, finds that the law clearly provides for individual liability: "Unlike its Federal and State counterparts, the New York City Human Rights Law specifically defines employee as someone who can be found liable. Section 8-107 of the New York City Administrative Code states that it shall be an unlawful discriminatory practice for 'an employer or agent thereof' to discriminate based on sex. Threfore, the New York City Human Rights Law contains a statutory basis for individual employee liability and [the individual defendant] may be held individually liable for his conduct." The case is available here. Note: the statutory language is actually broader than cited, proscribing conduct by an employer "or an employee or agent thereof..." Admin. Code § 8-107(1)(a).
Bourne v. Consolidated Edison, Index No. 1783/2006 (Sup. Ct. Kings Cty. March 8, 2008). In short form order, Court finds that (defendant's papers "did not make out a case for entitlement to dismissal under the City law, only discussing state and federal discrimination case law. Discussion of state and federal decisions are insufficient as a matter of law to state a claim for dismissal under the City law pursuant to the New York City Human Rights Law Restoration Act of 2005."
Selmanovic v. NYSE Group Inc., 2007 WL 4563431 (S.D.N.Y. December 21, 2007). Court recognizes that City Council intended for the City Human Rights Law to be interpreted more broadly than its state and federal counterparts, id. at *4, that the anti-retaliation provisions cover retaliation "in any manner," id. at *5, and reciting the enhanced liberal construction provision of the 2005 Restoration Act (Admin. Code § 8-130) to the effect that the provisions of the City Law “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed," id. (citing A Return to Eyes on the Prize).
Pasaturo v. Home Sewing Association, Index. No. 100018/04 (Sup. Ct. N.Y. Cty. Sept. 7, 2006), slip opinion, available here or here. In interpreting the City’s Human Rights Law, consideration must be given to the provisions of the Restoration Act, notably its language permitting interpretations of state and federal statutes with similar wording to be used as an aid in interpretation to the extent that they provide “a floor below which the City’s Human Rights Law cannot fall, rather than a ceiling above which the local law cannot rise.” Id. at 33-34 (quoting Restoration Act, § 1).
The court uses the Restoration Act to reject that holding of a stray 2001 First Department case (Sirota) that had ruled, contrary to the express language of both state and city human rights laws, that the disability definition of both laws have an ADA-like requirement that a plaintiff demonstrate a substantial limitation of a major life activity: "Sirota was decided in 2001. This 2005 statute legislatively amends NYC HRL so as to legislatively overrule cases such as Sirota that set the federal requirements as a 'ceiling above which the local law cannot rise.'" Id. at 49 (emphasis added).
Farrugia v. North Shore University Hosp., 13 Misc.3d 740, 820 N.Y.S.2d 718 (Sup. Ct. N.Y. Cty. 2006). Extensively reciting the provisions of the Restoration Act and finding that, “The New York City Human Rights Law was intended to be more protective than the state and federal counterpart.” Id. 13 Misc. 3d at 747-48, 820 N.Y.S.2d at 724 (referencing A Return To Eyes on the Prize). The federal construct by which “severity” or “pervasiveness” is required to sustain a harassment claim “is inconsistent with the City's Human Rights Law. 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.” Id. 13 Misc.3d at 748-49, 820 N.Y.S.2d at 724-25 (citing A Return to Eyes on the Prize).
Sorrenti v. City of New York, 2007 WL 2772308 (Sup. Ct. N.Y. Cty. 2007). Court recognizes that Section 1 of the Restoration Act "made it perfectly clear" that provisions of the City Human Rights Law was to be construed independently of similar or identical New York State or federal statutes, and, further, that courts are required to interpret City Human Rights Law provisions "liberally to accomplish [the law's] broad and remedial purposes..." Id. at *4. Court goes on to find that the Restoration Act's amendments to the City Human Rights Law's retaliation provisions are to be retroactively applied because they were intended to clarify pre-existing rights (i.e., that the 1991 Amendments to the City Human Rights Law were already intended to prohibit retaliation "in any manner"). Id.
Ochei v. Coler/Goldwater Memorial Hospital, 450 F.Supp.2d 275 (S.D.N.Y. 2006). Court recites the fact that the Second Circuit and New York courts have "traditionally applied the same standards of liability for claims under the [City] HRL," but goes on to state that "this practice of parallel interpretation has been called into question by the New York City Council's passage of the Local Civil Rights Restoration Act which amended several provisions of the CHRL and emphasized that the CHRL should be 'construed independently from similar or identical provisions of New York state or federal statutes.'" Id. at 282-83 (referencing A Return to Eyes on the Prize). The court also notes that Farrugia has held that "severe or pervasive" is not required under the City Human Rights Law for sexual harassment claims, but concludes in the context of the specific case the court is deciding that "It is unnecessary here to determine whether the Harris standards should apply to hostile work environment claims under the CHRL," because the plaintiff failed to allege that the conduct was engaged in by her supervisors or that supervisors knew or should have known about the harassment [citing Admin. Code §§ 8-107(13)(b)(2) and (3)]. Id. at 286 (emphasis added).
Pugliese v. Long Island R.R. Co.,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.
Augustin v. Yale Club, 2006 WL 2690289 (S.D.N.Y. Sept. 15, 2006). The court notes that, “As recently amended, the standards applied to retaliation claims under the NYCHRL seem to differ from federal law in at least one respect. Namely, unlike the federal standard, the retaliation complained of ‘need not result in ... a materially adverse change in the terms and conditions of employment ... provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.’ N.Y.C. Admin Code § 8-107(7), as amended by § 3(7) of the ‘Local Civil Rights Restoration Act of 2005’"). Id. at *29.
Jordan v. Bates Advertising Holdings, Inc., 11 Misc.3d 764, 816 N.Y.S. 310 (N.Y. Cty. 2006), modifed on other grounds, 46 A.D.3d 440, 848 N.Y.S.2d 127 (1st Dept. 2007). Contrary to the practice of mirror image interpretation, “in enacting the more protective Human Rights Law, the New York City Council has exercised a clear policy choice which this Court is bound to honor. The Administrative Code's legislative history clearly contemplates that the New York City Human Rights Law be liberally and independently construed with the aim of making it the most progressive in the nation. [citing legislative history and Restoration Act provisions]. Thus, the case law that has developed in interpreting both the State Human Rights Law and Title VII should merely serve as a base for the New York City Human Rights Law, not its ceiling.” Id. 11 Misc.3d at 770-71; 816 N.Y.S.2d at 317-18. Note that the appellate court decision did not discuss or analyze the City Human Rights Law in any way.
Hart v. Dresdner Kleinwort Wasserstein Securities, LLC, 2006 WL 2356157 (S.D.N.Y. Aug. 9, 2006). Employee had first worked in New York City, but was then based in London. During London tenure, one of her managers was in New York, and she maintained some New York clients. Jurisdiction upheld under both State HRL (which does have an extraterritoriality provision) and under City HRL (which doesn’t). Court cites revised Admin. Code § 8-130 (the provisions of the law shall be “construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof…”), and concludes that jurisdiction should lie, “Especially in light of the legislature's preference for courts to interpret the New York City Human Rights Law expansively…” Id. at *9.
Yanai v. Columbia University, 2006 N.Y. Misc. LEXIS 2407 (Sup. Ct. N.Y. Cty. Jul. 11, 2006). Contrary to the pre-Restoration Act, Forrest-sanctioned practice of applying the same standards to local law claims, the Restoration Act sought independent interpretation. To that end, the construction section was amended to provide that "the provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed." NYC Admin Code § 8-130 (as amended by Local Law No. 85 of 2005, § 7). Id. at *6.
Retroactive application of the Restoration Act is granted because the purpose of the Act was to clarify the meaning of pre-existing rights that had been created by the City Law as enacted in 1991, the court stating, “Thus, as the legislature always intended that the City law be construed liberally and independently beyond state and federal interpretations, this Court will be mindful of that purpose in considering whether defendant is entitled to summary judgment dismissing plaintiff's several claims as asserted under both New York City and New York State human rights laws.” Id. at *7. [note: court sustains both State and City HRL claims and ultimately does not do independent City law analysis.]
Loftman v. Columbia University, Index No. 121601/02 (Sup. Ct. N.Y. Cty. July 26, 2006), slip op., p. 6, fn. 2, available here or here (“New York City recently amended its Human Rights Law, rejecting the previous practice of interpreting the NYCHRL as a mirror image of state and federal anti-discrimination practices. As the NYCHRL espouses a broader and more liberal standard for discrimination claims than the NYHRL, the court needs not determine the specifics of analysis under the NYCHRL on this motion, as the plaintiffs case survives summary judgment even under the more restrictive standards of the NYHRL”).
Warren v. North Shore University Hospital at Forest Hills, 2006 WL 2844259 (E.D.N.Y. Sept. 29, 2006). The court modifies the usual “mirror image” citations to acknowledge that,“The New York City law has been recently amended so that it no longer strictly parallels Title VII.” Id. at *6, fn. 3 (referencing A Return to Eyes on the Prize). Judge asserts that none of the changes affect the analysis of the instant case.
Osorio v. Source Enterprises, 2006 WL 2548425 (S.D.N.Y. Sept. 5, 2005). Court explains its application of same standards to federal, state, and City claims by noting that the parties agreed that the same standards applied and that, “In particular, they make no claim that some very recent amendments to New York City’s anti-discrimination law are relevant here.” Id. at *2, fn. 1
Greenberg v. New York City Transit Authority, Report and Recommendation (E.D.N.Y. Sept. 29, 2006), slip op. at 5-6, available here (notwithstanding previous State Court of Appeals mirror image analysis, the City HRL “was recently amended in way that distinguishes it from its federal counterparts by expanding who qualifies as a ‘prevailing party’ for attorneys’ fees purposes”).