In a decision issued on January 27, 2009, New York's Appellate Divsion,First Department has responded to the requirements imposed by the 2005Local Civil Rights Restoration Act, and considered the New York City HumanRights Law not as a carbon copy of its state and federal counterpartsbut as an independent statute with a distinct history and distinctpurposes.
In so doing, it eliminated the rule in sexualharassment cases that has slammed the courthouse door on victims ofharassment who could not show that the harassment had been "severe orpervasive." The decision also addressed a variety of other areas ofthe law. Excerpts of the decision are below, and the full text of the decision can be accessed by clicking the link to the right.
The unofficial reporter citation is 872 N.Y.S.2d 27; the Westlaw citation of the case is 2009 WL173522, and the Slip Opinion citation is 2009 N.Y. Slip Op. 00440 (1stDept. 2009). Quotations of text exclude footnotes except wherespecifically indicated.
Enhanced Liberal Construction back to top
SlipOp. at 6-7, WL at *2: “As a result of this revision, the City HRL now explicitlyrequires an independent liberal construction analysis in allcircumstances, even where State and federal civil rights laws havecomparable language. The independent analysis must be targeted tounderstanding and fulfilling what the statute characterizes as the CityHRL's 'uniquely broad and remedial' purposes, which go beyond those ofcounterpart State or federal civil rights laws.”
Slip Op. at8-9, WL at *3: “[T]he Restoration Act notified courts that (a) they had to be aware thatsome provisions of the City HRL were textually distinct from its Stateand federal counterparts, (b) all provisions of the City HRL requiredindependent construction to accomplish the law's uniquely broadpurposes and (c) cases that had failed to respect these differenceswere being legislatively overruled.”
Slip Op. at 10-11, WL at *3: “Inshort, the text and legislative history represent a desire that theCity HRL 'meld the broadest vision of social justice with the strongestlaw enforcement deterrent.' Whether or not that desire is wiseas a matter of legislative policy, our judicial function is to giveforce to legislative decisions.”
Slip Op. at 19-20, WL at *6: “By making aspecific textual amendment to the construction provision (something notdone in 1991), the Council formally and unequivocally rejected theassumption that the City HRL's purposes were identical to that ofcounterpart civil rights statutes. In its place, the Council instructedthe courts -- reflected in text and legislative history -- that it wanted theCity HRL's provisions to be construed more broadly than federal civilrights laws and the State HRL, and wanted the local law's provisions tobe construed as more remedial than federal civil rights laws and theState HRL (Administrative Code § 8-130, as amended by the RestorationAct in 2005).”
Slip Op. at 20, WL at *6: “The Council saw the change to §8-130 as the means for obviating the need for wholesale textualrevision of the myriad specific substantive provisions of the law.While the specific topical provisions changed by the Restoration Actgive unmistakable illustrations of the Council's focus on broadeningcoverage, § 8-130's specific construction provision required a 'process of reflection and reconsideration' that was intended to allowindependent development of the local law “in all its dimensions”(Return to Eyes on the Prize, 33 Fordham Urb LJ at 280).”
Sexual Harassment back to top
SlipOp. at 18, WL at *6: “The [severe or pervasive] rule (and its misapplication) hasroutinely barred the courthouse door to women who have, in fact, beentreated less well than men because of gender.”
Slip Op. at 21, WL at *6:“Accordingly, we first identify the provision of the City HRL we areinterpreting and then ask, as required by the City Council: Whatinterpretation 'would fulfill the broad and remedial purposes of theCity's Human Rights Law'? Despite the popular notion that 'sexdiscrimination' and 'sexual harassment' are two distinct things, it is,of course, the case that the latter is one species of sex- orgender-based discrimination. There is no 'sexual harassment provision'of the law to interpret; there is only the provision of the law thatproscribes imposing different terms, conditions and privileges ofemployment based, inter alia, on gender (Administrative Code §8-107[1][a]).”
Slip Op. at 22, WL at *7: “As applied in the context ofsexual harassment, therefore, the relevant question is what constitutesinferior terms and conditions based on gender. One approach would beto import the 'severe or pervasive' test, a rule that the Supreme Courthas characterized as 'a middle path' between making actionable anyconduct that is merely offensive and requiring the conduct to cause atangible psychological injury” (Harris v. Forklift Sys., 510 U.S. 17,21 [1993]). This 'middle path,' however, says bluntly that a workerwhose terms and conditions of employment include being on the receivingend of all unwanted gender-based conduct (except what is severe orpervasive) is experiencing essentially the same terms and conditionsof employment as the worker whose employer has created a workplace freeof unwanted gender-based conduct.”
Slip Op. at 22-23, WL at *7:“Experience has shown that there is a wide spectrum of harassment casesfalling between 'severe or pervasive' on the one hand and a 'merely'offensive utterance on the other. The City HRL is now explicitlydesigned to be broader and more remedial than the Supreme Court's 'middle ground,' a test that had sanctioned a significant spectrum ofconduct demeaning to women. With this broad remedial purpose in mind,we conclude that questions of 'severity' and 'pervasiveness areapplicable to consideration of the scope of permissible damages, butnot to the question of underlying liability…”
Slip Op. at 22-23, WL at *6,fn. 22: “It would be difficult to find a worker who viewed a job whereshe knew she would have to cope with unwanted gender-based conduct(except what is severe or pervasive) as equivalent to one free ofunwanted gender-based conduct.”
Slip Op. at 23, WL at *7: “In doing so, wenote that the 'severe or pervasive' test reduces the in-centive foremployers to create workplaces that have zero tolerance for conductdemeaning to a worker because of protected class status. In contrast,a rule by which liability is normally determined simply by theexistence of differential treatment (i.e., un-wanted gender-basedconduct) maximizes the law's deterrent effect. It is the latterapproach -- maximizing deterrence -- that incorporates 'traditional methodsand principles of law enforcement,' one of the principles by which ouranalysis must be guided (Committee Report, 2005 N.Y. City Legis Ann,at 537).”
Slip Op. at 24-26, WL at *8: "Further evidence in the legislativehistory precludes making the standard for sexual harassment violationsa carbon copy of the federal and State standard. The City HRL'senhanced liberal construction requirement was passed partly inrecognition of multiple complaints that a change to § 8-130 wasnecessary to prevent women from being hurt by the unduly restrictive 'severe or pervasive' standard. The Council had been told that the 'severe or pervasive' standard 'continuously hurts women' and 'meansthat many victims of sexual harassment may never step forward.' Likewise, the Council was told that 'without any considerationof what standard would best further the purposes of the City Law, womenwho have been sexually harassed are rou-tinely thrown out of courtwithout getting a chance to have a jury hear their claims because ajudge uses the federal standard that they have not been harassedenough,' and that '[w]e have long had the problem of judgesinsisting that harassment [has] to be 'severe or pervasive' before itis actionable, even though such a requirement unduly narrows the reachof the law.”
Slip Op. at 26, WL at *8: “For HRL liability,therefore, the primary issue for a trier of fact in harassment cases,as in other terms and conditions cases, is whether the plaintiff hasproven by a preponderance of the evidence that she has been treatedless well than other employees because of her gender. At the summaryjudgment stage, judgment should normally be denied to a defendant ifthere exist triable issues of fact as to whether such conduct occurred(Administrative Code § 8-107(1)(a); see Farrugia, 13 Misc.3d at748-749 ['Under the City's law, liability should be determined by theexistence of unequal treatment, and questions of severity andfrequency reserved for consideration of damages], cited by theSouthern District Court in Selmanovic, 2007 U.S. Dist LEXIS 94963, *11,2007 WL 4563431, *4).
Slip. Op at 28, WL at *9: “Contrary to theassumption embedded in [a recent case purporting to import the federalstandard into the local law,] the task under the City HRL, as amendedby the Restoration Act, is not to ask, ‘Would a proposed interpretationdiffer from federal law?’, but rather, ‘How differently, if at all,should harassment and non-harassment sex discrimination cases beevaluated to achieve the City HRL's uniquely broad and remedial purposes?’”
Slip Op. at 28-29, WL at *9: “As discussed above, we concludethat a focus on unequal treatment based on gender -- regardless of whetherthe conduct is “tangible” (like hiring or firing) or no -- is in fact theapproach that is most faithful to the uniquely broad and remedialpurposes of the local statute. To do otherwise is to permit far toomuch unwanted gender-based conduct to continue befouling the workplace.”
SlipOp. at 30, WL at *9, fn. 30: “One can easily imagine a single comment thatobjectifies women being made in circumstances where that comment would,for example, signal views about the role of women in the workplace andbe actionable.”
Sexual Harassment – Limited Affirmative Defense back to top
SlipOp. at 29, WL at *9: Our task, however, is not yet completed because, while theCity HRL has been structured to emphasize the vindication of civilrights over shortcuts that reduce litigation volume, we recognize thatthe broader purposes of the City HRL do not con-note an intention thatthe law operate as a “general civility code” (Oncale v. SundownerOffshore Servs., 523 U.S. 75, 81 [1998], discussing Title VII). The wayto avoid this re-sult is not by establishing an overly restrictive“severe or pervasive” bar, but by recog-nizing an affirmative defensewhereby defendants can still avoid liability if they prove that theconduct complained of consists of nothing more than what a reasonablevictim of discrimination would consider “petty slights and trivialinconveniences.”
Slip Op. at 29-30, WL at *9: “In doing so, we narrowlytarget concerns about truly insubstantial cases, while at the same timeavoiding improperly giving license to the broad range of conduct thatfalls between 'severe or pervasive' on the one hand and a 'petty slightor trivial inconvenience' on the other. By using the device of anaffirmative defense, we recognize that, in general, 'a jury made up ofa cross-section of our heterogeneous communities provides theappropriate institution for deciding whether borderline situationsshould be characterized as sexual harassment and retaliation' (Gallagher v. Delaney, 139 F3d 338, 342 [2d Cir1998]). At the sametime, we assure employers that summary judgment will still be availablewhere they can prove that the alleged discrimi-natory conduct inquestion does not represent a 'borderline' situation but one that couldonly be reasonably interpreted by a trier of fact as representing nomore than petty slights or trivial inconveniences.”
Retaliation back to top
SlipOp. at 13-14, WL at *4: “In assessing retaliation claims that involve neitherultimate actions nor materially adverse changes in terms and conditionsof employment, it is important that the assessment be made with a keensense of workplace realities, of the fact that the 'chilling effect' ofparticular conduct is context-dependent, and of the fact that a jury isgenerally best suited to evaluate the impact of retaliatory conduct inlight of those realities. Accordingly, the language of the CityHRL does not permit any type of challenged conduct to be categoricallyrejected as nonactionable. On the contrary, no challenged conduct maybe deemed nonretaliatory before a determination that a jury could notreasonably conclude from the evidence that such conduct was, in thewords of the statute, “reasonably likely to deter a person fromengaging in protected activity.”
Continuing Violations back to top
SlipOp. at 16-17, WL at *5: “In National R.R. Passenger Corp. v Morgan (536 U.S. 101[2002]), the Supreme Court established that for federal law purposes,the 'continuing violation' doctrine only applied to harassment claimsas opposed to claims alleging 'discrete’ dis-criminatory acts. At thetime the comprehensive 1991 amendments to the City HRL were enacted,however, federal law in the Second Circuit did not so limit continuingviolation claims [citations omitted]. There is no reason to believethat the Supreme Court's more restrictive rule of 2002 was anticipatedwhen the City HRL was amended in 1991, or even three years after thatruling, when the Restoration Act was passed in 2005.…On the contrary,the Restoration Act's uniquely remedial provisions are consistent witha rule that neither penalizes workers who hesitate to bring an actionat the first sign of what they suspect could be discriminatory trouble,nor rewards covered entities that dis-criminate by insulating them fromchallenges to their unlawful conduct that continues into thelimitations period.”
Mixed Motive back to top
Slip Op. at 27, WL at *8, fn.27: “In the 'mixed motive' context, of course, the question onsummary judgment is whether there exist triable issues of fact thatdiscrimination was one of the motivating factors for the defendant'sconduct. Under Administrative Code § 8-101, discrimination shall playno role in decisions relating to employment, housing or publicaccommodations.”
Adverse Action back to top
Slip Op. at 32, WL at *10, fn. 33:“In view of the Restoration Act's rejection of Forrest v. Jewish Guildfor the Blind (3 NY3d 295 [2004] ) and Galayba v. New York City Bd. OfEduc. (202 F3d 636 [2d Cir2000]), two of the cases cited by the courtbelow, [the issue of what constitutes an adverse action] would need to be decided afresh with due regard forthe commands of the enactment (see e.g. Council Member Palma'sstatement, at footnote 3, supra, that cases like these ‘will no longerhinder the vindication of our civil rights’; see also Committee Report,2005 N.Y. City Legis Ann, at 537, demanding that ‘discrimination ...not play a role,’ and at 538 n 4, contrasting Galayba with theCouncil's preferred approach to materiality). However, given thefactual circumstances of the instant case, such a determination is notnecessary."