Experts Roundup – New Commentary About Doe v. Bloomberg LP.

This session’s commentary is about the Court’s decision in Doe v. Bloomberg LP. As we explained in our decision summary, in that case, a divided Court held that an individual owner of a corporate entity is not an employer under the New York City Human Rights Law (NYCHRL), and can be liable only for his “own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct.”

We’re excited to share three comments on Bloomberg:

Stephen Bergstein, The New York Court of Appeals will not expansively interpret the City HRL in every case.

• Stephen Bergstein is a civil rights lawyer at Bergstein & Ullrich, in New Paltz, New York. In addition to his practice, Bergstein is an active member (and former director) of the New York chapter of National Employment Lawyers’ Association and maintains an influential blog (called Wait a Second!) that covers civil rights developments in the U.S. Court of Appeals for the Second Circuit and other courts. He also lectures extensively on civil rights matters.
• Bergstein argues that despite efforts by the City Council to make the NYCHRL the most expansive civil rights statute in the country, the Court “will not hesitate to reject an expansive interpretation of the statute if the circumstances warrant that result.” The decision in Doe follows that pattern and, in Bergstein’s view, represents the “latest example” of retrenchment by the Court from interpreting the NYCHRL expansively.

Robert S. Whitman, L’etat N’est Pas Moi: When the “Owner” is Not the “Employer.”

• Robert Whitman is partner in the New York office of Sewfarth Shaw LLP. In addition to his practice, Whitman co-chairs the Wage and Hour Committee of the State Bar Association’s Labor & Employment Section, and also oversees the pro bono efforts in Seyfarth’s New York office.
• Whitman argues that Doe is “welcome news” for corporate executives, who are often sued under the NYCHRL “as a lever to generate adverse publicity, embarrassment, or heightened settlement value.” The decision, Whitman argues, should put an end to that practice.

Miriam F. Clark, Doe Decision Limits Employee Rights Under State and City Human Rights Laws.

• Miriam F. Clark is a partner with the firm of Ritz Clark & Ben Asher LLP, practicing employment law on behalf of employees, and also serves on the Executive Board of the National Employment Lawyers Association/New York Affiliate and as Chair of its Legislative Committee.
• Clark argues that the Court in Doe went “out of its way” to decide that a 37-year-old decision interpreting the New York State Human Rights Law means “the opposite of what it says.” As a result, Clark concludes that “legislative action on both the state and city level may once again be required to protect employees and to carry out the broad legislative vision embodied in both the state and city statutes.”

Many thanks to the authors for contributing their thoughts, which of course are theirs alone and do not represent the views of TwentyEagle.