By Hunter Igoe
In 2016, the New York City Council passed Local Law No. 35, amending New York City Human Rights Law (“NYCHRL”) § 8-130 to read as follows:
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 worded comparably to provisions of this title, have been so construed.[1]
Three prior cases, Albunio v. City of New York, Bennett v. Health Management Systems, Inc., and Williams v. New York City Housing Authority, provide greater context on the correct application of this standard.[2]
Recently, the First Department applied this statute, allowing for a more liberal understanding of gender discrimination in Suri v. Grey Global Group, Inc., and a broader understanding of marital status in Morse v. Fidessa Corp.[3]
Writing for the majority in Suri, Justice Moulton held that in order to establish a prima facie case of gender discrimination under NYCHRL, a plaintiff need only show that he or she was treated less well than other employees based on his or her gender.[4] According to the court, NYCHRL does not distinguish between sexual harassment and gender discrimination, and therefore, claims of discrimination must be viewed “holistically.”[5] This is contrasted against the ridged standards of sexual harassment and hostile work environment under the New York State Human Rights Law (“NYSHRL”) and federal law.[6]
Furthermore, the court rejected the application of the Bennett burden-shifting test (New York City’s equivalent of the McDonnell-Douglas burden shifting framework) as Suri involved a hostile environment claim that resulted in differential treatment based on gender while Bennett did not.[7] The court further elaborated, stating the Bennett burden shifting test should not automatically apply to discrimination cases under NYCHRL. Instead, the court should “consider[] the totality of the circumstances” and “us[e] a reasonable person standard” to determine the weight of the alleged discriminatory behavior.[8]
Justice Kahn dissented, arguing that it was wrong to expand the City’s understanding of gender discrimination and sexual harassment.[9] Rather than adopting the majority’s “holistic[]” approach, the dissent separated the plaintiff’s sexual harassment, hostile work environment, and other claims into their traditional, individual parts as done under NYSHRL and federal law.[10]
Further expanding NYCHRL, the court in Morse held marital status did not only mean married or not married, as under New York State and federal interpretations, but instead was broader, encompassing discrimination based on the “identity of a person’s spouse.”[11] This expansion was based on Williams’s holding that lowered the standard for sexual harassment cases from “severe and pervasive,” as if it was such a high standard, discrimination would be “allowed to play some significant role in the workplace,” thus undermining the intent of NYCHRL.[12] “[A] narrow interpretation of ‘marital status’ would allow a wide range of discriminatory conduct—including conduct arising out of assumptions based on stereotypes.”[13] Therefore, if an individual is fired because of the identity of his or her marital partner, marriage would ultimately play a role in the employment decision.[14]
Williams, codified by Local Law No. 35, predicted the rise of new legal arguments arising out of settled NYCHRL.[15] The decisions in Suri and Morse are two examples of new, expansive understandings of terms under the NYCHRL, with more likely to follow.
[1] N.Y.C. Admin. Code § 8-130(a) (LEXIS, current through Sept. 25, 2018).
[2] § 8-130(c) (LEXIS).
[3] Suri v. Grey Glob. Grp., Inc., Index 100846/11, 2018 WL 3650197, at *4 (N.Y. App. Div. Aug. 2, 2018); Morse v. Fidessa Corp., Index 158948/16, 2018 WL 4223907, at *1 (N.Y. App. Div. Sept. 6, 2018); Albunio v. City of N.Y., 16 N.Y.3d 472, 477 (N.Y. 2011) (expanding the understanding of opposed discrimination in retaliation claims); Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 45 (N.Y. App. Div. 2011) (establishing a burden shifting framework for the purposes of considering summary judgment); Williams v. N.Y.C. Housing Ass’n, 61 A.D.3d 62, 80 (N.Y. App. Div. 2009) (lowering the “severe or pervasive” standard to more than a “petty slight or trivial inconvenience” in sexual harassment cases).
[4] Suri, 2018 WL 3650197, at *4.
[5] Id. at *4-5.
[6] Id. at *4.
[7] Id. at *7.
[8] Id. at *7.
[9] Id. at *13-14.
[10] Id. at *18, 20.
[11] Morse v. Fidessa Corp., Index 158948/16, 2018 WL 4223907, at *1.
[12] Id. at *4 (citing Williams v. N.Y.C. Housing Ass’n, 61 A.D.3d 62, 76 (N.Y. App. Div. 2009).
[13] Id. at *5.
[14] Id. at *5.
[15] Id. at *3.
