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.
Zustovich v. Harvard Maintenance, Inc.
2009 WL 735062 (S.D.N.Y., March 20, 2009)
Motion to dismiss plaintiff's hostile work environment claims brought under City HRL denied, though denial would have been required under Title VII's Harris standard. The court recognized that "the New York City Human Rights Law was intended to be more protective than its state and federal counterpart." Id. at *11. The court quoted the S.D.N.Y. Selmanovic decision for the proposition that, "under the City's law, liability should be determined by the existence of unequal treatment and questions of severity and frequency reserved for considerations of damages." Id. The court quoted the Appellate Division's Williams decision for two important propositions: (1) that the Restoration Act "now explicitly requires an independent liberal construction analysis in all circumstances, even where State and federal civil rights laws have comparable language. The independent analysis must be targeted to understanding and fulfilling what the statute characterizes as the City HRL's ‘uniquely broad and remedial’ purposes, which go beyond those of counterpart State or federal civil rights laws," and (2) with the Restoration Act, "[T]he Council formally and unequivocally rejected the assumption that the City HRL's purposes were identical to that of counterpart civil rights statutes. In its place, the Counsel instructed the courts -- reflected in the text and legislative history -- that it wanted the City HRL's provisions to be construed more broadly than federal civil rights laws and the State HRL, and wanted the local law's provisions to be construed as more remedial than federal civil rights laws and the State HRL.” Id.
Williams v. New York City Housing Authority
872 N.Y.S.2d 27, 2009 WL 173522, 2009 N.Y. Slip Op. 00440 (1st Dept, Jan. 27, 2009), available here.
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." Slip. Op. at 8-9.
"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..." Slip Op. at 22-23.
The court also clarifies the broad scope of the local law's retaliation provisions, and rejects a narrow interpretation of continuing violation doctrine.
Zakrzewska v. The New School
___ F.Supp.2d ___, 2009 WL 252094 (S.D.N.Y. January 26, 2009)
"[T]he plain language of Section 8-107, subd. 13(b), is inconsistent with the defense crafted by the Supreme Court in Faragher and Ellerth. It creates vicarious liability for the acts of managerial and supervisory employees even where the employer has exercised reasonable care to prevent and correct any discriminatory actions and even where the aggrieved employee unreasonably has failed to take advantage of employer-offered corrective opportunities. Likewise, it provides for employer liability for the discriminatory acts of co-workers in like circumstances provided only that a managerial or supervisory employee knew of and acquiesced in such conduct or should have known of what was going on and failed to take reasonable preventive measures. Given the lack of any substantial reason to believe that the New York Court of Appeals would not apply Section 8-107, subd.13(b), as it is written and the mandate of the Erie doctrine, the Court holds that Faragher-Ellerth does not apply in NYCHRL cases and therefore denies summary judgment dismissing the sexual harassment claim against [defendant]..."
Okayama v. Kintetsu World Exp. (U.S.A.)
2008 WL 2556257 (Sup. Ct. N.Y.Cty., June 12, 2008)
The Faragher/Ellerth affirmative defense "is not available to [defendant] because [defendant's] liability, or lack thereof, is governed by Administrative Code § 8-107 (13) (b) (1), which governs an employer's liability for the unlawful discriminatory conduct of an employee where 'the employee ...exercised managerial or supervisory responsibility.' Administrative Code § 8-107 (13) (e) provides that, as to liability, certain factors similar to those that would constitute an affirmative defense under Ellerth and Faragher are to be considered 'in determining an employer's liability under subparagraph three of paragraph b of this subdivision.' Subparagraph three provides for employer liability where the employer 'should have known of the employee's .. discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.' In accord with the maxim expressio unius est exclusio alterius (see Statutes § 240), neither Administrative Code § 8-107 (13 (e), nor the similar defense available pursuant to Ellerth and Faragher, is applicable to claims brought pursuant to Administrative Code § 8-107 (13) (b) (1)." Id.
Sanabria v. M. Fabrikant & Sons, Inc.
Index. No. 113378/2002 (Sup. Ct. N.Y.Cty., March 21, 2008), available here.
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. Therefore, 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." 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. Dec. 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.
Dybdal v. Variable Life Insurance Company and AIG
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.
Pasaturo v. Home Sewing Association
Index. No. 100018/04 (Sup. Ct. N.Y. Cty. Sept. 7, 2006), slip opinion, available 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. 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.
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. 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.
“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. 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, 2006)
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...”