On Monday, March 28, 2016, Mayor Bill de Blasio signed several bills (Intros 814-A, 818-A, and 819) amending the New York City Human Rights Law (“NYCHRL”). The amendments strengthen employee protections by changing existing laws to provide for 1) a more liberal construction of the NYCHRL for plaintiffs; 2) attorneys’ fees, expert fees, and other costs for prevailing parties before the New York City Human Rights Commission (“NYCHRC”); and 3) removal of certain language regarding sexual orientation.
Amendments to the Construction Provision of the NYCHRL
In 2005, the New York City Council passed the “Local Civil Rights Restoration Act,” with the stated goal of clarifying the scope of the NYCHRL. The Act instructed tribunals to construe the NYCHRL “independently from similar or identical provisions of New York state or federal statutes” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.” Local Law 85 , City of New York (2005), § 1. Additionally, the Act amended Section 8-130, also known as the construction provision of the NYCHRL, to read:
“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.”
Mayor de Blasio recently signed Intro 814-A, which further amends the construction provision in two key ways. First, it specifies that “exceptions to and exemptions from the provisions of [the NYCHRL] shall be construed narrowly in order to maximize deterrence of discriminatory conduct.” Second, the bill incorporates three judicial decisions as having “correctly understood and analyzed the liberal construction requirement” of the NYCHRL: Albunio v. City of New York, 16 N.Y.3d 472 (N.Y. 2011), the majority opinion in Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009), and Bennett v. Health Management Systems, Inc., 92 A.D.3d 29 (1st Dep’t 2011).
In Albunio, the Court of Appeals held that it “must construe [the anti-retaliation provision of the NYCHRL] like other provisions of the City’s Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” 16 N.Y.3d at 477-78. The plaintiff, Captain Lori Albunio, was ousted as commanding officer of the Youth Services Section of the Police Department, and alleged that it was in retaliation to her support of a gay colleague’s movement into an open position within the department. Although there was scant evidence underlying Albunio’s claim, the court nevertheless concluded, “[b]earing in mind the broad reading that [it] must give to the [NYCHRL],” that Albunio could be found to have opposed discrimination against a co-worker and affirmed the intermediate appellate court’s order finding in her favor. Id. at 479.
In Williams, the Appellate Division held that the “severe” or “pervasive” standard required by courts when evaluating federal hostile work environment claims was not required by the NYCHRL. 61 A.D.3d at 76. Although ultimately it found against the plaintiff, the court dedicated several pages to explaining the “requirements and purposes” of the 2005 Restoration Act, with an emphasis on legislative history. The court concluded that the Restoration Act “formally and unequivocally rejected the assumption that the [NYCHRL’s] purposes were identical to those of counterpart civil rights statutes.” Id. at 74. The court went on to conclude that “[f]urther evidence in the legislative history precludes making the standard for sexual harassment violations a carbon copy of the federal and state standard.” Id. at 77. According to Williams, a plaintiff need not prove that harassment was severe or pervasive, but instead need only show that she has been treated less well than other employees because of her gender. Id. at 78. The court noted that questions of severity and pervasiveness go only to consideration of the scope of permissible damages, and not to the question of underlying liability. Id. at 76. Additionally, the court recognized an affirmative defense “whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences.’” Id. at 80.
Finally, in Bennett, the court set out to examine “whether, and to what extent, the three-step burden-shifting approach” set forth by the U.S. Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973) “must be modified [when evaluating NYCHRL] claims, particularly in the context of the adjudication of summary judgment motions.” 92 A.D.3d at 34. The McDonnell Douglas burden-shifting approach is often used to adjudicate discrimination claims where plaintiffs do not have direct evidence of discrimination. First, a plaintiff must establish a prima facie case of discrimination. The court in Bennett described this as a “showing of membership in a protected class and that an adverse employment action had been taken against him . . . under circumstances giving rise to an inference of discrimination.” Id. at 35. After this showing is made, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Subsequently, the burden shifts back to the plaintiff to show that these reasons are false or pre-textual.
Citing to Williams and the Restoration Act as guideposts, the court noted that the application of the burden-shifting analysis — especially in the summary judgment context — undercut the NYCHRL’s intent to “maximize the opportunities for discrimination to be exposed.” Id. at 36. The court cautioned against “creat[ing] room for discriminators to avoid having to answer for their actions before a jury of their peers,” and proceeded to set forth the proper way to evaluate evidence at summary judgment. Id. at 38.
The court clarified that a defendant’s proffer of a nondiscriminatory reason for an adverse employment action does not trigger a retroactive critique of the adequacy of a plaintiff’s prima facie showing except in “rare and unusual” circumstances. Id. at 40. To quote the court,
[w]here a defendant has put forward evidence of one or more nondiscriminatory motivations for its actions, however, a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out. Instead, it should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, “direct” evidence, or some combination thereof.
. . . If 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.
Id. at 45.
Intro 814-A explicitly incorporates into the NYCHRL the above three cases, and the principles set forth therein, in order to directly communicate to judges presiding over claims under the NYCHRL.
Attorneys’ Fees for Complainants before the New York City Human Rights Commission
Intro 818-A amends the administrative code in relation to the NYCHRL to provide attorneys’ fees, expert fees, and other costs in complaints brought before the NYCHRC. Unlike in courts, attorney’s fees have not historically been available at the Commission. The law allows the Commission to consider “matter-specific factors” when determining attorneys’ fee awards, including, but not limited to: 1) the novelty or difficulty of the issues presented; 2) the skill and experience of the complainant’s attorney; and 3) the hourly rate charged by attorneys of similar skill and experience litigating similar cases in New York County.
With regard to actions brought in court rather than in the NYCHRC, attorneys’ fees have historically been available. However, the law adds “expert and other costs” among forms of relief at the court’s discretion. The law also instructs courts to apply “the hourly rate charged by attorneys of similar skill and experience litigating similar cases in New York County when it chooses to factor the hourly rate into the attorneys’ fee award.”
Repeal of Language Regarding Sexual Orientation Discrimination
Intro 819 repeals language which relates to the applicability of provisions of the NYCHRL regarding sexual orientation. The bill eliminates special disclaimer language from Section 8-107 of the NYCHRL seen to reflect antiquated ideas about sexual orientation, which were prevalent back when the law was enacted. For instance, the subdivision stated, in part, that “nothing in this chapter shall be construed to . . . make lawful any act that violates the penal law of the state of New York” or “endorse any particular behavior or way of life.”