City Law Update: Comparison of NYCHRL to State and Federal Law

Joshua Friedman
Updated December 5, 2009

Summary:

The First Department in Williams¹ and the Second Circuit in Loeffler² agree that the City Law requires a more liberal and separate construction from state and federal law.

The Second Department has acknowledged the more liberal standard in dictum, Barnum³ and one Kings County Supreme Court Justice has held that Williams is binding on lower courts in the Second Department unless and until the Second Department reaches a contrary construction of the City Law. See Lampner v. Pryor Cashman⁴.

Introduction

Title 8, Chapter 1, of the Administrative Code of the City of New York, N.Y.C. Admin. Code S 8–101 et seq., as amended, commonly known as the New York City Human Rights Law (the "NYCHRL"), enacted by the City Counsel in its current form in 1991, differs from New York State and federal employment discrimination statutes in several ways, which have been clarified in recent decisions.

As the First Department recently explained, the key to understanding the NYCHRL is the Local Civil Rights Restoration Act of 2005 (Local Law No. 85 of the City of New York [2005])(the "Restoration Act"). Williams v. New York City Housing Authority, ––– N.Y.S.2d ––––, 2009 WL 173522, 2 (1st Dep't 2009)

As the name implies, the purpose of the Restoration Act was the restore the construction of the NYCHRL to the original intent of the New York City Counsel, and overrule cases which had incorrectly imported more restrictive federal doctrines in construing it. 2009 WL 173522 at 3 ("'ensure construction of the City's human rights law in line with the purposes of the fundamental amendments to the law enacted in 1991,' and to reverse the pattern of judicial decisions that had improvidently 'narrowed the scope of the law's protections' [quoting the Committee on General Welfare Report]")

The Restoration Act provides 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.

NYCHRL S 8–130

The First Department, citing the legislative history of the Restoration Act, made plain that it's purpose was legislatively to overrule such decisions as Forrest v. Jewish Guild for the Blind, 3 NY3d 296, 309–310 (2004), which had applied the federal requirement that harassment be "severe or pervasive" in order to be actionable, and held that the affirmative defense to supervisor harassment under federal law⁵ is available under the NYCHRL. 2009 WL 173522 at 6 ("legislatively overruling it by amending the construction provision of Administrative Code S 8–130, and putting to an end this view of the City HRL as simply mimicking its federal and State counterparts").

The First Department quoted the Statement of Annabel Palma a member of the Committee on General Welfare that had brought the bill to the floor of the Council:

There are many illustrations of cases, like . . . Forrest that have either failed to interpret the City Human Rights Law to fulfill its uniquely broad purposes, ignore the text of specific provisions of the law, or both.

With [the Restoration Act] these cases and others like them, will no longer hinder the vindication of our civil rights⁶.

2009 WL 173522 at 11.

The First Department noted that the City Counsel had instructed that:

There is significant guidance in understanding the meaning of the term "uniquely broad and remedial." . . . In case after case, the balance struck by the Amendments favored victims and the interests of enforcement over the claimed needs of covered entities in ways materially different from those incorporated into state and federal law."

The Council directs courts to the key principles that should guide the analysis of claims brought under the City HRL: victims of discrimination suffer serious injuries, for which they ought to receive full compensation"

2009 WL 173522 at 3 (citations omitted)

The Second Circuit has endorsed the holding of Williams completely:

The Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005) (the "Restoration Act") amended the City HRL in a variety of ways, including by confirming the legislative intent to abolish "parallelism" between the City HRL and federal and state anti–discrimination law:

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.

Restoration Act S 7. There is now a one–way ratchet: "Interpretations of New York state or federal statutes with similar wording may be used to aid in interpretation of New York City Human Rights Law, viewing similarly worded provisions of federal and state civil rights laws as a floor below which the City's Human Rights law cannot fall." Id. S 1 (emphasis added).

Loeffler v. Staten Island University Hosp., 582 F.3d 268, 278 (C.A.2 (N.Y.),2009)

The Second Department has acknowledged in dictum that the Restoration Requires a more liberal construction of City Law, Barnum v. New York City Transit Authority, 62 A.D.3d 736, 739, 878 N.Y.S.2d 454, 456 (N.Y.A.D. 2d Dep't 2009)("the current liberalized standards of interpretation (see. . . . Local Civil Rights Restoration Act. . . .)"), and a recent Supreme Court decision in Kings County held that it and other lower courts are required to follow Williams unless and until the Second Department reaches a contrary construction of the City Law:

Although a First Department case, Williams is nevertheless binding on this court, at least until the Second Department issues a contrary ruling (see Mountain View Coach Lines v. Storms, 102 AD2d 663, 664).

Lampner v. Pryor Cashman, 10894/07 November 6, 2009 (Law Journal 11/12/09)(available at http://docs.google.com/View?id=dmnhqtn_136f2njv9dt)

1: There is No Requirement that Harassment be Severe or Pervasive in order to be actionable under the NYCHRL

The First Department held in Williams, supra, that:

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.FN22 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

2009 WL 173522 at 7.

In Loeffler v. Staten Island University Hosp., 582 F.3d 268, 279 (2d Cir. 2009), the Second Circuit followed Williams and held that the severe or pervasive is inapplicable in City Law hostile work environment cases.

In Lampner v. Pryor Cashman, 10894/07 November 6, 2009 (Law Journal 11/12/09)(available at http://docs.google.com/View?id=dmnhqtn_136f2njv9dt) a Supreme Court Justice in Kings County held that it and other lower courts in the Second Department are required to follow Williams on this issue unless and until the Second Department reaches a contrary construction of the City Law.

See accord Costantin v. New York City Fire Dept., 2009 WL 3053851, 19 (S.D.N.Y. 2009)("Less egregious conduct than that required under Title VII may support a hostile work environment claim under the NYCHRL. The City law does not impose "an overly restrictive 'severe or pervasive' bar," but merely requires that a plaintiff show "more than what a reasonable victim of discrimination would consider 'petty slights and trivial inconveniences.'" Williams, 61 A.D.3d at 79–80, 872 N.Y.S.2d at 41."); Zustovich v. Harvard Maintenance, Inc. 2009 WL 735062, 11 (S.D.N.Y. March 20, 2009)(following the First Department in Williams: existence of unequal treatment; questions of severity and frequency reserved for considerations of damages); Ortiz–Moss v. New York City Dept. of Transp. 2008 WL 1899950, 17 (S.D.N.Y.) 2008)("once a plaintiff shows that she belongs to a protected group, was subjected to unwelcome sexual harassment, and that the harassment complained of was based on her sex, she is not required to demonstrate that the harassment was severe or pervasive"); Selmanovic v. NYSE Group, Inc., 2007 WL 4563431, 4 (S.D.N.Y. 2007)("liability should be determined by the existence of unequal treatment and questions of severity and frequency reserved for consideration of damages"); Farrugia v. North Shore University Hosp. 13 Misc.3d 740, 748, 820 N.Y.S.2d 718, 724 (N.Y.Sup. 2006); Ochei v. Coler/Goldwater Memorial Hospital, 450 F.Supp.2d 275 (S.D.N.Y. 2006)(dictum).

Brief Point: HWE Claims under the NYCHRL are analyzed under a more protective liability standard than HWE claims under state and federal law

Under Title VII a HWE plaintiff must show that she "is a member of a protected class, . . . suffered harassment as a result, [and her] workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently pervasive to alter the conditions of [her] employment." Costantin v. New York City Fire Dept., 2009 WL 3053851, 18 (S.D.N.Y. 2009)(citing and quoting several Second Circuit authorities). "In evaluating whether a plaintiff has been subjected to a hostile work environment, courts consider: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is [physically] threatening or humiliating, or a mere offensive utterance; and (4) whether it 'unreasonably interferes with the employee's work performance. Id. (citations and quotes omitted).

The Supreme Court has charactered the "severe or pervasive" test as "a middle path" between making actionable any conduct that is merely "offensive and requiring the conduct to cause a tangible psychological injury" Harris v. Forklift Sys., 510 U.S. 17, 21 (1993).

However, in enacting of the Restoration Act, the City Council rejected the severe or pervasive standard, in order to encourage employers not to tolerate any harassment based on membership in a protected class:

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

Williams v. New York City Housing Authority, 61 A.D.3d 62, 76, 872 N.Y.S.2d 27, 38 (1st Dep't 2009). Accord, Loeffler v. Staten Island University Hosp., 582 F.3d 268, 279 (2d Cir. 2009); Lampner v. Pryor Cashman, 10894/07 November 6, 2009 (Law Journal 11/12/09)(available at http://docs.google.com/View?id=dmnhqtn_136f2njv9dt)(Williams is binding on lower courts in the Second Department)[does anyone have a real cite for Lampner?]. As the First Department explained:

[T]he "severe or pervasive" test reduces the incentive for employers to create workplaces that have zero tolerance for conduct demeaning to a worker because of protected class status. In contrast, a rule by which liability is normally determined simply by the existence of differential treatment (i.e., unwanted gender–based conduct) maximizes the law's deterrent effect.

Williams, 872 N.Y.S.2d at 38. The First Department recognized that even where an employee has been treated differently because of his or her membership in a protected class, employers may 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 41.

Under this more aggressive approach to civil rights enforcement, conduct which may pass muster under the severe or pervasive standard will frequently run afoul of our statute. See, e.g., Dixon v. City of New York, 2009 WL 1117478 (E.D.N.Y. April 24, 2009)(where harassment consisted of a single incident, defendant "grabbing plaintiff's arm and threatening that her 'ex–con' husband would hurt him," federal and state claims were dismissed, but NYCHRL HWE claims were sent to trial); [if people have more such cases where federal and state claims were dismissed, but NYCHRL HWE claims were sent to trial, please let me know, so I can include them in the string cite].

Many cases, involving repetitive behavior, or particularly offensive single incidents, will meet both liability standards. See, e.g., Constantin, supra at 20("it would be premature to decide that the need to correct Plaintiff's handwriting justified Lawrence's alleged harassment and hostility. A fact–finder could reasonably view his actions as intended to mock Plaintiff's pronunciation, rather than improve her penmanship. Testimony that Lawrence asked her if she could speak and write in English, threw paperwork at her, commanded her to read in front of colleagues, and required that she repeat certain words that emphasized her 'harsh' accent to elicit laughter, provides 'direct evidence of national origin discrimination.'").

However, in all cases it is necessary first to determine whether given the "uniquely broad and remedial" construction of our statute intended by the City Council, the alleged misconduct meets the stricter liability standard. Williams at 32.

2: The Faragher/Ellerth Affirmative Defense to Supervisor Liability Is Unavailable Under the NYCHRL

Under the NYCHRL law there has never been a corollary to the affirmative defense⁷ under Title VII created by the Supreme Court in Faragher v. City of Boca Raton, 524 US 775 (1998), which allows an employer to avoid liability for supervisor harassment. The NYCHRL provides for strict vicarious liability for the harassing acts of a supervisor, whether or not the employer was aware of the supervisor's conduct.

When the City Human Rights Law was enacted by the City Council in its current form in 1991 the Council published Local Law Memoranda of The City of New York in the 1991 Legislative Annual. The Memorandum compared the new law with the old law. It states:

Current Law		New Law
Liability of employers for acts of employees and agents.		Strict liability in employment context for acts of managers and supervisors . . .⁸
No explicit coverage.

Section 8–107(13)(b)(1) is quite clear and has remained unchanged since 1991. It provides in pertinent part that an "employer shall be liable for . . . the conduct of an employee or agent which is in violation of subdivision one . . . of this section only where: (1) The employee or agent exercised managerial or supervisory responsibility"

As one federal court recently concluded:

Here, the 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 TNS

Zakrzewska v. New School, 598 F.Supp.2d 426, 2009 WL 139505, 6 (S.D.N.Y. 2009)(emphasis added).

Two Justices of the New York County Supreme Court have reached the same conclusion, in strongly reasoned decisions. See Okayama v. Kintetsu World Exp. (U.S.A.), 2008 WL 2556257 (Sup. Ct. N.Y.Cty., June 12, 2008)("defense available pursuant to Ellerth and Faragher," is not "applicable to claims brought pursuant to Administrative Code S 8–107 (13) (b) (1)."); Smallen v. New York University, 2009 N.Y. Misc. LEXIS 2644; 242 N.Y.L.J. 21 (7/8/09 NY Sup.).

See also Pugliese v. Long Island R.R. Co., 2006 WL 2689600, 11–12 (E.D.N.Y. 2006)("LIRR may be held vicariously liable for the actions of employee Greer because, as Pugliese's former manager, she exercised managerial or supervisory responsibility. See S 8–107(13)(b)(1)"); Fowler v. Scores Holding Co., Inc., 2009 WL 5178475, 7 (S.D.N.Y. 12/28/2009)(after citing Zakrzewska the court held that the following facts created vicarious employer liability: "Fowler has alleged that supervisors and managers at Scores West touched her, grabbed and groped her body, made unwelcome comments about her body, forcibly kissed her, and made her engage in sexual acts with a manager. Fowler has also alleged that a manager smeared a steak all over her face.")

3: The Majority of Courts Hold that the 2005 Restoration Act Applies Irrespective of When the Facts took Place, therefore Retroactivity is not an Issue

Because the Restoration Act did no more than restate the City Counsel's original intentions in enacting the NYCHRL in 1991, it may be applied to facts which occurred prior to 2005 without raising concerns of retroactivity. Loeffler v. Staten Island University Hosp., 582 F.3d 268, 279 (2d Cir. 2009)("since the Restoration Act clarified the meaning of the pre–existing protections under the City HRL, New York courts have applied the Restoration Act retroactively," citing Sorrenti); Yanai v. Columbia Univ., 2006 N.Y. Misc. LEXIS 2407 (Sup.Ct., N.Y. Cty. 2006)("Defendant[s] argue[ ] that the LCRRA is inapplicable to the instant action, as it did not take effect until October 3, 2005, when it was enacted. However to the extent ... [the amended provisions] are intended to clarify' the legislative intent and construction of the City's Human Rights Law as originally enacted in 1991, they do not create new rights, but are consistent with the meaning and enforcement of pre–existing rights, and as such are entitled to retroactive application ..."); Sorrenti v. City of New York, 2007 WL 2772308, 4 (Sup.Ct., N.Y. Cty. 2007)(accord).

However, the Second Department has held that the RA is partially retroactive: it applies to cases filed after the effective date, which was October 3, 2005. Barnum v. NYC Tran. Auth., 62 A.D.3d 736, 739 878 N.Y.S.2d 454 (2d Dep't 5/12/09)("must be assessed in accordance with the law in effect as of the date of the commencement of the action"); Smallen v. NY University, 2009 WL 2129436 (N.Y.Sup.), 2009 N.Y. Slip Op. 31491(U) (Sup. NY 6/8/09)("Plaintiff brought the instant action in 2006. The Local Civil Rights Restoration Act became effective in 2005. The current liberalized standards apply to actions commenced after this date," citing Barnum)

4: The Kolstad Standard Does not Apply to Proof of Punitive Damages under the NYCHRL

In Kolstad¹⁰ the Supreme Court construed the meaning of 42 USC S1981a(b)(1) which provides that punitive damages may only be awarded under Title VII when "respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual."

The NYCHRL does not contain anything similar to S 1981a(b)(1). Instead, it sets out a set of criteria which "shall be considered in mitigation of the amount of . . . punitive damages which may be imposed . . . ." 8–107(13)(e). Those criteria are that the defendant:

(1) Established and complied with policies, programs and procedures for the prevention and detection of unlawful discriminatory practices by employees, agents and persons employed as independent contractors, including but not limited to:

(i) A meaningful and responsive procedure for investigating complaints of discriminatory practices by employees, agents and persons employed as independent contractors and for taking appropriate action against those persons who are found to have engaged in such practices;

(ii) A firm policy against such practices which is effectively communicated to employees, agents and persons employed as independent contractors;

(iii) A program to educate employees and agents about unlawful discriminatory practices under local, state and federal law; and

(iv) Procedures for the supervision of employees and agents and for the oversight of persons employed as independent contractors specifically directed at the prevention and detection of such practices; and

(2) A record of no, or relatively few, prior incidents of discriminatory conduct by such employee, agent or person employed as an independent contractor or other employees, agents or persons employed as independent contractors.

These criteria are for the jury to weigh. There is no safe harbor under which a defendant may remove punitive damages from a case entirely by proving certain criteria. The City Council gave the NYC Human Rights Commission the power to create a safe harbor by establishing "policies, programs and procedures" for the "prevention and detection of discrimination by employees," 8–107(13)(f), but the Commission has never utilized such power. Thompson v. American Eagle Airlines, Inc., 2000 WL 1505972, 11 (S.D.N.Y. 2000)(Denying dismissal of punitive damages claim on summary judgment: defendant "conceded at argument that there is no evidence in this record of what, if any, 'policies, programs and procedures' have been established by a New York City Human Rights Commission.")

Thus the only defense to punitive damages is a partial one, "mitigation," pursuant to the criteria in the NYCHRL, once plaintiffs establish liability. After reviewing the factors set forth in 8–107(13)(e)(1) and 8–107(13)(e)(1) above, as the Thompson court observe:

In view of the explicit language that these factors are only to be considered as factors in mitigating punitive damages, they are not a complete defense sufficient to strike the claim for punitive damages on a motion for summary judgment.

Id. at 11. Defendant also tried to argue that the more restrictive federal standard articulated by the Court in construing Title VII in Kolstad should be applied to the City Law, however the court rejected this concept:

[W]hile consideration of claims brought under the New York City Human Rights Law parallels the analysis used in Title VII claims, see Cruz, 202 F.3d at 565 n. 1, the analysis under federal anti–discrimination laws cannot be used in those cases where the statutes differ. See, e.g., Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154–56 (2d Cir.1998).

Id. at 11. accord Gabel v. Richards Spears Kibbe & Orbe, LLP, 2009 WL 1856631, 2 (S.D.N.Y. 2009)("The defendants' motion to preclude plaintiff from pursuing her claim for punitive damages is denied in limine. The Court is in no position to determine whether I will or will not charge punitive damages until after the Court has heard the evidence. In any event, whether punitive damages are available under federal law and whether they are available under the New York City Human Rights Law are, as my colleague Judge Koetl concluded in Thompson v. Am. Eagle Airlines, Inc., 99 Civ. 4529, 2000 WL 1505972, at * *10–11 (S.D.N.Y. Oct. 6, 2000), wholly separate questions")

Thus the knowledge requirements––"malice or with reckless indifference to the federally protected rights of an aggrieved individual"––that the Court imposed in Kolstad as a condition for imposition of punitive damages do not apply under the NYCHRL.

Application of the Kolstad standard would violate the intent of the Restoration Act. As emphasized by the First Department, the purpose behind the passage of the Restoration Act in 2005 by the City Counsel was to make it absolutely clear that the NYCHRL "explicitly requires an independent liberal construction analysis in all circumstances, even where State and federal civil rights laws have comparable language." Williams, 2009 WL 173522 at 2. Numerous other courts have reached the same conclusion since the passage of the Restoration Act¹¹.

The author of the City Law and the Restoration Act, Professor Craig Gurian, has noted that:

Given the City Human Rights Law's overriding concern that covered entities be made to recognize the seriousness with which they must take their obligations, advocates will likely question why a defendant who recklessly disregards the risk that its conduct will harm the plaintiff should not, as a matter of local law, be liable for punitive damages. Such conduct is blameworthy regardless of whether the defendant is disregarding, as required by Kolstad, a known risk of violating the law.

A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255, 318 (2006).

5: The NYCHRL Standard for Proof of Retaliation

The NYCHRL contain an extremely liberal standard governing the proof of retaliation. Section (7) (as amended by the Restoration Act) provides that:

It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, . . . The retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment, . . . or in a materially adverse change in the terms and conditions of employment. . . , however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.

As the First Department noted, this standard is more liberal than the current federal standard under Title VII:

Subsequent to passage of the Restoration Act, the U.S. Supreme Court modified the Title VII anti–retaliation standard ( Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 [2006] ). In doing so, however, Burlington still spoke in terms of "material adversity," i.e., conduct that might have dissuaded a reasonable worker from making or supporting a charge of discrimination ( id. at 68, 126 S.Ct. 2405). While this was a standard similar to that set forth in S 8–107(7), it cannot be assumed that cases citing Burlington adequately convey the full import of the City HRL standard, especially because the confusing use of the term "materially adverse" might lead some courts to screen out some types of conduct prior to conducting "reasonably likely to deter" analysis. In fact, to reiterate, S 8–107(7) specifically rejects a materiality requirement.

Williams, 2009 WL 173522 at 11 n. 12.

The First Department held that "it is important that the assessment be made with a keen sense of workplace realities, of the fact that the 'chilling effect' of particular conduct is context–dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities." Id. At 4. Accord, Selmanovic, 2007 WL 4563431 at 5 (provisions cover retaliation "in any manner")

In addition, it is inappropriate to apply the temporal proximity rules used under Title VII¹² to the NYHRL. As the court in Rivera v. Lutheran Medical Center, 866 N.Y.S.2d 520, 523 (Kings Sup.,2008) noted in holding that a four year lapse between the filing of a lawsuit under the NYCHRL and plaintiff's termination did not necessarily preclude a finding of retaliation:

Defendant argues, however, that casual link between the protected conduct (supporting Byrnes' lawsuit) and the adverse action (termination from LMC) is too tenuous to support a cause of action for retaliatory discrimination under the NYCHRL. LMC claims the four–year lapse between the filing of the Byrnes lawsuit and plaintiff's discharge does not reasonably result in the inference that plaintiff's association with Byrnes was the reason for his termination. . . . Plaintiff has sufficiently established a cause of action under the NYCHRL. The temporal proximity between the purported protected activity and the adverse action is but one factor to consider in determining the sufficiency of the pleadings.

6: NYCHRL Standard for Proof of Compensatory Damages

There is no requirement that plaintiff present proof of treatment in order to recover damages for emotional distress. In reversing the Second Department's initial conclusion that the $450,000 award could not be sustained without evidence of treatment or physical manifestations, the New York Court of Appeals instructed the Appellate Division that:

The existence of compensable mental injury may be proved, for example, by medical testimony where that is available, but psychiatric or other medical treatment is not a precondition to recovery. Mental injury may be proved by the complainant's own testimony, corroborated by reference to the circumstances of the alleged misconduct.

In re New York City Transit Auth., 78 N.Y.2d 207, 577 N.E.2d 40, 573 N.Y.S.2d 49 (N.Y. 1991)($450,000 based solely on testimony of plaintiff)

There are numerous cases decided in state and federal court the NYCHRL and State law which expressly recognize that the testimony of the plaintiff, often supported by the testimony of her friends, family or co–workers, is sufficient to support a significant emotion distress award, without the testimony of a treating or expert medical provider. See, e.g., In Re Town of Hempstead, 233 A.D.2d 451, 649 N.Y.S.2d 942 (2d Dep't 1996)($500,000 for sexual harassment under NY State law based on testimony of plaintiff and friend); New York City Police Dept. v DeLeon, Sup Ct, NY County, July 28, 1992, Altman, J., Index No. 40191/92, aff'd, 201 AD2d 260, 608 N.Y.S.2d 827 (1994), lv denied, 83 NY2d 757) ($250,000 based solely on testimony of victim of retaliation); 119–121 East 97th Street Corp. v. New York City Com'n on Human Rights, 220 A.D.2d 79, 85, 642 N.Y.S.2d 638, 642 (N.Y.A.D. 1 Dept.,1996)(Denying remittitur of $100,000 emotional distress award by NYCCHR: "The testimony of the complainant alone will suffice to sustain an award for mental anguish (Cullen v. Nassau County Civil Service, 53 N.Y.2d 492, 497, 442 N.Y.S.2d 470, 425 N.E.2d 858). Further, evidence of mental treatment is not required for a finding of mental anguish [citing DeLeon, supra])); Broome v. Biondi, 17 F.Supp.2d 211 (S.D.N.Y.,1997)(a jury awarded $114,000 each in emotional distress damages under the City Law to two tenants whose application to sublease a cooperative apartment was rejected on the basis of race, solely on their testimony of embarrassment and humiliation caused by the discriminatory approval process, being reduced to tears, and her husband's testimony as to his anger and shame for not having defended his wife.)

In Osorio v. Source Enterprises, Inc., 2007 WL 683985, 5 (S.D.N.Y.2007), the court denied a motion for remittitur of an award of $4 million in compensatory damages for a retaliatory termination under the NYCHRL and the New York State Human Rights Law. There was no medical evidence, no expert testimony and therefore no testimony establishing a clinically serious depression; there was no uncontradicted testimony of suicidal ideation. In explaining his decision to deny remittitur Judge Rakoff explained that:

There is no doubt that the $4 million in damages on the retaliation claim is a very full verdict . . . . However, plaintiff testified at some length about the emotional distress and damage to reputation caused by the retaliation, including how defendants' retaliation caused her to feel depressed and anxious and to feel embarrassed in front of others in the industry, as well as causing her difficulty during subsequent job interviews and professional events and the like. . . . Throughout the trial, defendants themselves emphasized the preeminent role that The Source enjoyed at the time in the world of "hip hop," having a readership of 2 million persons and more. . . . Plaintiff, having risen from humble beginnings to the position of Editor–in–Chief of this prominent publication, only to be summarily dismissed in retaliation for filing a complaint of gender discrimination, might reasonably have suffered, as she averred, substantial emotional distress and reputational harm–and a jury, having found that such retaliation was intentional, could reasonably have concluded, under any standard,FN3 to award substantial damages.

2007 WL 683985 at 5.

There is no authority under the NYCHRL for the imposition of the federal doctrine under Title VII announced by the Court in McKennon v. Nashville Banner Publ'g. Co., 513 U.S. 352, 362–63, 115 S.Ct. 879 (1995), whereby lost compensation damages are cut off at the time defendant would have terminated plaintiff for violation of company policies had it been known. Importing the McKennon standard would be contrary to the intent of the City Council: "One of the core principles intended by the Council to guide decision makers is that 'victims of discrimination suffer serious injuries, for which they ought to receive full compensation.' (quoting the 2005 Committee Report at 5)" A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law," 33 Fordham Urb. L.J. 255 (2006)

7: Are Pattern and Practice Claims Continuing Violations for Statute of Limitations Purposes under the NYCHRL

In Siri v. Princeton Club of New York, ––– N.Y.S.2d ––––, 2009 WL 438966 (1^st Dep't Dept., February 24, 2009) the First Department appears to have answered for City and State law the question the Court left open in National Railroad Passenger Corp v. Morgan footnote 9, whether "the timely filing . . . with respect to 'pattern–or–practice' claims" would allow suit on untimely conduct allegedly part of the pattern and practice (as it does in HWE claims). The answer, provided in a terse opinion bordering on cryptic, appears to be yes:

In a second motion to dismiss plaintiffs' first and third causes of action alleging intentional discrimination in the assignment of banquet work, which was brought before the first motion was argued and after the Supreme Court issued its decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (550 U.S. 618 [2007] ), wherein it was held that a pay–setting decision is a discrete act of discrimination with the relevant period of limitations beginning to run when the act first occurs FN1, defendant asserts that plaintiffs' claims were time–barred

* * *
Regarding defendant's second motion, plaintiffs are not paid any particular set salary but are alleged to earn what are sporadic and differing amounts of money, depending upon the number of functions to which they are assigned. Therefore, plaintiffs are, in effect, accusing defendant of a continuing practice of discrimination in its work assignments.

¹ Williams v. New York City Housing Authority, --- N.Y.S.2d ----, 2009 WL 173522, 2 (1st Dep't 2009)

² Loeffler v. Staten Island University Hosp., 582 F.3d 268, 279 (2d Cir. 2009)

³ Barnum v. New York City Transit Authority, 62 A.D.3d 736, 739, 878 N.Y.S.2d 454, 456 (N.Y.A.D. 2d Dep't 2009)("the current liberalized standards of interpretation (see. . . . Local Civil Rights Restoration Act. . . .)")

⁴ Lampner v. Pryor Cashman, 10894/07 November 6, 2009 (Law Journal 11/12/09)(available at http://docs.google.com/View?id=dmnhqtn_136f2njv9dt)

⁵ Faragher v. City of Boca Raton, 524 US 775 (1998)

⁶ Quoted in 33 Fordham Urb. L.J. 255, 260 (2006).

⁷ In the Decision this Court noted that under Faragher "[t]he affirmative defense comprises of two elements: that the employer exercised reasonable care to prevent and correct any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm." This Court further noted that "a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute. Faragher at 806."

⁸ Legislative Annual at 187, New York State Legislative Service, Inc. (1991).

⁹ Subdivision One (8-107(1)) provides that "It shall be an unlawful discriminatory practice:

(a) For an employer or an employee or agent thereof, because of the actual or perceived . . . .gender . . of any person, to . . . discriminate against such person in compensation or in terms, conditions or privileges of employment."

¹⁰ Kolstad v. American Dental Ass'n, 527 U.S. 526, 529-530, 119 S.Ct. 2118, 2121 (U.S. 1999)(“Punitive damages are limited, however, to cases in which the employer has engaged in intentional discrimination and has done so “with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Rev. Stat. § 1977, as amended, 42 U.S.C. § 1981a(b)(1). We here consider the circumstances under which punitive damages may be awarded in an action under Title VII.")

¹¹ See, e.g., Simmons v. New York City Transit Authority, 2008 WL 2788755, 2 (E.D.N.Y.,2008)(“should be ‘construed independently from similar or identical provisions of New York state or federal statutes.' N.Y.C. Local Law No. 85 § 1 (Oct. 3, 2005); Hanna v. New York Hotel Trades Council, 18 Misc.3d 436, 438, 851 N.Y.S.2d 818, 822 (N.Y.Sup. 2007)(“The Court notes New York City Council policy that NYCHRL is to be liberally and independently construed with the aim of making it more protective than its federal (Title VII of the Civil Rights Act of 1964) . . . counterpart. . . ."); Krist v. OppenheimerFunds, Inc., 2007 WL 4624023, 4 (N.Y.Sup.) (N.Y.Sup.,2007)(“NYCHRL § 8-107, et seq., as amended by the Local Civil Rights Restoration Act of 2005, is required to be construed liberally"); Selmanovic v. NYSE Group, Inc., 2007 WL 4563431, 4 (S.D.N.Y. 2007)(interpreted more broadly than its state and federal counterparts); Dybdal v. Variable Life Insurance Company and AIG, 2007 WL 4118944 (E.D.N.Y. Nov. 19, 2007)(“more deferential standard [for plaintiffs] than those brought under Title VII"); Farrugia v. North Shore University Hosp. 13 Misc.3d 740, 748, 820 N.Y.S.2d 718, 724 (N.Y.Sup. 2006)(“more protective than the state and federal counterpart"); Sorrenti v. City of New York,2007

WL 2772308, 4 (Sup.Ct., N.Y. Cty. 2007)(accord); Ochei v. Coler/Goldwater Memorial Hospital, 450 F.Supp.2d 275 (S.D.N.Y. 2006)(accord); Hart v. Dresdner Kleinwort Wasserstein Securities, LLC, 2006 WL 2356157 (S.D.N.Y. Aug. 9, 2006) (“legislature's preference for courts to interpret the New York City Human Rights Law expansively") Yanai v. Columbia Univ., 2006 N.Y. Misc. LEXIS 2407 (Sup.Ct., N.Y. Cty. 2006)(accord).

¹² Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).