By Stephen Bergstein.
The New York City Council has periodically amended the City Human Rights Law to reemphasize the statute’s broad remedial nature. The Council has even embedded the liberal interpretative guidance into the statute. Despite a body of case law that has adhered to that directive, the New York Court of Appeals will not hesitate to reject an expansive interpretation of the statute if the circumstances warrant that result. Doe v. Bloomberg, ___ N.Y.3d ___, 2021 WL 496608 (Feb. 11, 2021), is the latest example.
Employment attorneys in New York know that the City law is among the most expansive civil rights laws in the country. After the City Council amended the law in 2006 to reassert the City Council’s objectives, several Appellate Division rulings enunciated the interpretative model, including Williams v. New York City Hous. Auth., 61 A.D.3d 62 (1st Dept. 2009), and Bennett v. Health Management Sys., Inc., 92 A.D.3d 29 (1st Dept. 2011). While the plaintiff in Williams ultimately failed to prove her claims on appeal, the First Department used her case as a vehicle to drive home the liberal statutory interpretation guiding the City law, 61 A.D.3d at 65-69, and it rejected the “severe or pervasive” test governing sexual harassment cases under Title VII, holding instead that “a focus on differential treatment better serves the purposes of the statute.” Id. at 75-77. Bennett notably rejected the “pretext-plus” model used by the Second Circuit in resolving employment discrimination cases. While the Second Circuit holds that an employer’s false reason is not always enough to prove its stated reason for the adverse action was a pretext for discrimination, see Fisher v. Vassar Coll., 114 F.3d 1332 (2d Cir. 1997) (en banc), Bennett held, “[i]f 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 45. This principle ensures that more cases under the City law will proceed to trial.
The New York Court of Appeals has adopted these remedial interpretations of the City law. In Zakrzewska v. New School, 14 N.Y.3d 469 (2010), the Court rejected the Faragher/Ellerth affirmative defenses in hostile work environment cases under Title VII, holding instead that employers are vicariously liable for any sexual or racial harassment committed by a supervisor. This ruling expanded liability under the City law even if the employer reasonably prevented and remedied the harassment. Then, in Albunio v. City of New York, 16 N.Y.3d 472 (2011), the Court held the plaintiff made out a retaliation claim under the City law because she engaged in protected activity in telling another supervisor, Hall, that her choice, Sorrenti, was a better candidate for an open position than her supervisor’s choice, stating, “[i]f I had to do it all again, I would have recommended Sorrenti again.” Id. at 479. The Court stated, “[w]hile she did not say in so many words that Sorrenti was a discrimination victim, a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall’s treatment of Sorrenti was wrong.” Id. While the federal courts in New York almost certainly would have rejected this reasoning under Title VII, the Court in Albunio reached this result based on “the broad reading that we must give to the New York City Human Rights Law.” Id.
The Court of Appeals again highlighted the stark differences between the City and State HRL’s in Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y. 881 (2013), upholding the plaintiff’s disability discrimination claim under the City law but not the State law, which at the time did not mandate a liberal statutory interpretation. Id. at 883-85. These cases were perhaps the high-water mark in the Court of Appeals’ analysis of the City HRL, and the City Council even cited Albunio and the two First Department rulings, Bennett and Williams, in amending the law in 2016 to re-emphasize how courts should interpret the statute. N.Y.C. Admin. Code § 8–130(c).
On the basis of these rulings, employers may have thought that claims brought under the City law would always be an uphill battle. That would prove false. Over time, the Court of Appeals began to issue rulings that rejected the expansive interpretations advanced by plaintiffs. In Makinen v. City of New York, 30 N.Y. 81 (2017), the Court held that the City HRL did not recognize the plaintiff’s disability claim on the basis of her perceived untreated alcoholism. While such a claim could proceed under the State HRL, the City law does not recognize such a claim. Id. at 86. “The NYCHRL provides that, with respect to alcoholism, a person is considered to be disabled (so as to trigger the protections of that law) only when he or she ‘is recovering or has recovered’ and “currently is free of such abuse.” (Id.) Even the liberal construction under the City HRL cannot create a statutory entitlement where the City law provides fewer protections on this issue than the State HRL. “The Restoration Act’s requirement that the statute be construed broadly cannot apply when the NYCHRL expressly requires otherwise—we would be rewriting the NYCHRL, not merely giving it a broad reading to effectuate its remedial anti-discrimination purpose.” Id. at 89. While a lengthy dissent by Judge Garcia, joined by Judge Stein, demonstrated the complexity of this issue, they were outvoted.
The Court of Appeals again rejected an expansive interpretation of the City law in Chauca v. Abraham, 30 N.Y.3d 325 (2017), a case that I briefed and argued. In this pregnancy discrimination case, the Court had to determine the appropriate standard for punitive damages under the City law, which does not expressly articulate such a test. Relying on the City HRL’s liberal statutory construction, Plaintiff asked the Court of Appeals to interpret the statute to authorize punitive damages if the plaintiff can prove intentional discrimination. Id. at 331. The 6-1 majority rejected that approach. The majority agreed that the heightened punitive damages standard under Title VII, requiring a showing of malice or reckless indifference to the plaintiff’s rights, does not govern the City law. But the Court looked to the common law definition of punitive damages for the City law standard: whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a “conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” Id. at 334. While Judge Wilson’s lengthy dissent proved this issue was not free from doubt, the majority signaled that it will not depart from traditional legal principles simply because the City Council wants an expansive statutory construction, particularly if the statute does not address that particular issue. That brings us to Doe v. Bloomberg, which again rejected an expansive interpretation of the City law in favor of a more traditional analysis. Once again, a lengthy dissenting opinion, this time by Judge Rivera, demonstrated that few legal issues are straightforward, even in the construction of a remedial statute. But the majority found that even under the City law, such corporate officials as shareholders, agents, limited partners, and employees are not “employers” under the statute. These individuals may only be sued when they have personal responsibility for the civil rights violation or were aiders and abettors. The result is that Michael Bloomberg in particular cannot be sued for the sexual harassment alleged in the case. Like Chauca, the Court of Appeals applied longstanding New York principles, i.e., the Partnership, Limited Liability and Business Corporation Laws, as well as Black’s Law Dictionary for the definition of “employer.” In the end, the Court held, “The unique provisions of the City HRL provide for broad vicarious liability for employers but that liability does not extend to individual owners, officers, employees, or agents of a business entity.”
ABOUT THE AUTHOR: Stephen Bergstein, Esq., is a civil rights lawyer at Bergstein & Ullrich, in New Paltz, New York.
Posted on 2021-02-19.