On March 28, 2016, New York City Mayor Bill de Blasio signed, into law, Local Laws 35, 36, and 37 of 2016 (“Local Law 35,” “Local Law 36,” and “Local Law 37,” respectively; collectively, the “new Laws”), which, effective immediately, strengthen employees’ rights and remedies under the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 – 8-131 (the “City Human Rights Law” or the “NYCHRL”).
Specifically, these amendments to the City Human Rights Law, among other enhancements of workers’ rights and of available judicial and administrative relief, (i) require that exemptions to and exceptions from the provisions of the NYCHRL be construed narrowly so as to maximize deterrence of discriminatory conduct and (ii) endorse the liberal construction afforded the NYCHRL by a certain decision of the New York Court of Appeals and by two particular decisions of New York’s Appellate Division, First Department.
Moreover, the new Laws (iii) authorize the New York City Commission on Human Rights (the “City Commission on Human Rights,” the “Commission,” or the “NYCCHR”) to award, to complainant employees, attorneys’ fees in proceedings brought before the Commission, and (iv) repeal an antiquated provision of the City Human Rights Law suggesting that the NYCHRL does not shield, from discrimination in employment or housing, individuals who engage in homosexual conduct and that the NYCHRL does not endorse what some traditionalists term the ‘gay lifestyle.’
On March 9, 2016, the New York City Council, by votes of 40-2, 42-0, and 40-2, had approved Local Laws 35, 36, and 37, respectively.
The New York City Human Rights Law prohibits employers with four or more employees from firing or refusing to hire an individual, and from discriminating against an individual in compensation or in the terms and conditions of employment, because of the individual’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, or citizenship status (or, effective May 4, 2016, caregiver status).
The City Human Rights Law authorizes any applicant aggrieved by a discriminatory practice rendered unlawful by NYCHRL to file a civil action in a court of law or to to file an administrative proceeding with the City Commission on Human Rights. Under the NYCHRL, in either a lawsuit in court or an administrative proceeding before the NYCCHR, not only the employer, but also individual employees or agents of the employer, may be held liable.
Under the NYCHRL, in a civil action in a court of law, punitive damages are unlimited, and a prevailing litigant may recover his or her costs and reasonable attorney’s fees.
By contrast, under the NYCHRL, in an administrative proceeding before the NYCCHR, punitive damages are not available, and — until the passage of Local Law 36 — a prevailing employee could not recover his or her costs or attorneys’ fees.
The New Laws
Local Law 35: Local Law 35 amends the City Human Rights Law, N.Y.C. Admin. Code § 8-130, captioned “Construction,” to provide that “Exceptions to and exemptions from [the NYCHRL] shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”
Further, by addition to the same section of the NYCHRL, N.Y.C. Admin. Code § 8-130, Local Law 35 endorses, as “correct,” the judicial decision of Albunio v. City of New York, 16 N.Y.3d 472, 947 N.E.2d 135, 922 N.Y.S.2d 244 (N.Y. 2011). In Albunio, the New York Court of Appeals — the State of New York’s highest court — held that N.Y.C. Admin. Code § 8-107(7), the NYCHRL provision barring any employer, supervisor, or co-worker from retaliating or discriminating against an employee because that employee has opposed any practices or acts rendered unlawful by the NYCHRL, “must [be] . . . construe[d] . . . broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.”
Again, by addition to N.Y.C. Admin. Code § 8-130, Local Law 35 endorses, as correct, the judicial decisions of Williams v. New York City Housing Authority, 61 A.D.3d 62, 872 N.Y.S.2d 27 (1st Dep’t 2009) and Bennett v. Health Management Systems, Inc., 92 A.D.3d 29, 936 N.Y.S.2d 112 (1st Dep’t 2011).
In Williams, New York’s Appellate Division, First Department (the “First Department”) — that branch of the State of New York’s intermediate appellate court with jurisdiction over Manhattan and the Bronx — held that, under the City Human Rights Law, conduct need not be ” ‘severe’ ” or ” ‘pervasive’ ” to constitute hostile work environment harassment. Instead, held the Williams Court, the conduct’s severity and pervasiveness bear upon “the scope of permissible damages.”
In turn, in Bennett, the First Department — among other employee-friendly constructions of the NYCHRL — held that, in an employment discrimination lawsuit brought under NYCHRL:
On a motion [by the defendant employer] for summary judgment, [the] defendant [employer] bears the burden of showing that, based on the evidence before the court and drawing all reasonable inferences in [the] plaintiff [employee]’s favor, no jury could find [the] defendant [employer] liable under any of the evidentiary routes: under the McDonnell Douglas [burden-shifting] test, or as one of a number of mixed motives, by direct or circumstantial evidence.
Local Law 36: Local Law 36 amends the City Human Rights Law, N.Y.C. Admin. Code § 8-120, to provide that, in an administrative proceeding before the City Commission on Human Rights, a prevailing employee may recover his or her reasonable attorneys’ fees, expert fees and other costs.
Under the new Law, the Commission, in determining an award of attorneys’ fees to a victorious employee, may consider, among other enumerated factors, “the hourly rate charged by attorneys of similar skill and experience litigating similar cases in New York county [that is, Manhattan]” (emphasis added).
So, too, Local Law 36 amends the NYCHRL, N.Y.C. Admin. Code § 8-502, to make clear that in a civil action in a court of law, the “costs” which a victorious litigant may recover include expert witnesses’ fees.
The new Law further states that, in a NYCHRL lawsuit in which the court elects to factor the lawyer’s hourly rate into an award of attorneys’ fees to a prevailing party, “[t]he court shall apply the hourly rate charged by attorneys of similar skill and experience litigating similar cases in New York county [i.e., Manhattan]” (emphasis added).
As the New York City Council’s March 8, 2016 Committee Report on the new Laws (the “New York City Council’s Committee Report” or the “City Council’s Committee Report”) recognizes, Local Law 36’s specification that courts and the NYCCHR, in awarding attorneys’ fees under the NYCHRL, must base those awards on an hourly market rate charged by similarly situated lawyers in Manhattan, is a boon to employees and their lawyers, because the hourly market rates billed by lawyers in Manhattan “are the highest rates in New York City.”
Local Law 37: Local Law 37 repeals section 8-107(16) of the City Human Rights Law, N.Y.C. Admin. Code § 8-107(16).
In the City Council’s Committee Report’s words, Local Law 37 eliminates an “outdated and unnecessary” provision of the City Human Rights Law which had “singled out” gays and lesbians as less worthy of a shield against discrimination than the other classes protected by the NYCHRL.
As the City Council’s Committee Report observes, Section 8-107(16) “was added [to the NYCHRL] in 1986 in the same local law that added protections based on sexual orientation, apparently to address concerns and help gather support for the new sexual orientation protections.”
Section 8-107(16)(d) of the NYCHRL, N.Y.C. Admin. Code § 8-107(16)(d) had provided that nothing in the NYCHRL shall be construed to “[m]ake lawful any act that violates the penal law of the State of New York.” Similarly, section 8-107(16)(e) of the NYCHRL, N.Y.C. Admin. Code § 8-107(16)(e), had stated that nothing in the NYCHRL shall be construed to “[e]ndorse any particular behavior or way of life.”
As the Council’s Committee Report notes, section 8-107(16)(d) of the City Human Rights Law was an indirect means of stating that the NYCHRL does not shield, from discrimination in employment or housing, individuals who engage in consensual sodomy — an act which, until 2000, was a criminal offense in the State of New York.
In turn, section 8-107(16)(e) of the NYCHRL appears to have been a roundabout pronouncement that the NYCHRL shall not be construed to endorse what some traditionalists term the ‘gay lifestyle.’
As stated, Local Law 37 renders a dead letter these statutory disclaimers about the applicability of the NYCHRL to sexual orientation.