Several recent court decisions have significantly increased the ability of employment discrimination plaintiffs to survive summary judgment motions attacking their claims under the New York City Human Rights Law (NYCHRL).  One federal court has even questioned whether the Faragher/Ellerth defense in sexual harassment cases is applicable to NYCHRL claims and has certified that question for resolution by the Second Circuit.

As a result of the decision in Williams v. NYC Housing Authority, 872 N.Y.S.2d 27 (App. Div. 1st Dep’t 2009), employers with New York City employees must be on the lookout for an increase in employment actions filed under the NYCHRL, as reported in our February 4, 2009 Labor Law Bulletin.  In Williams, the New York State appellate court with jurisdiction over Manhattan rejected, for purposes of the NYCHRL, the “severe and pervasive” standard governing hostile work environment claims under Title VII and the New York State Human Rights Law (NYSHRL) in favor of a broader standard under which evidence of any allegedly discriminatory conduct constituting more than “petty slights or trivial inconveniences” could be sufficient to defeat summary judgment.  Indeed, the court declared that the NYCHRL is “explicitly designed to be broader and more remedial” than its federal and state counterparts. 

Several courts have since analyzed the effect of the Williams decision on employment litigation under the NYCHRL.  The results suggest that there will be an increase in NYCHRL claims.

In Dixon v. City of New York, No. 03 Civ. 343, 2009 U.S. Dist. LEXIS 35096 (E.D.N.Y. Apr. 24, 2009), the Eastern District reversed an earlier grant of summary judgment to the employer in a hostile work environment claim on the grounds that the plaintiff’s allegation that a supervisor grabbed his arm and threatened that her “ex-con” husband would hurt him was sufficient under the NYCHRL, even though the action was insufficiently severe or pervasive under federal standards.

The Southern District lately interpreted Williams to mean that the NYCHRL employs a broader standard for evaluating whether a claim qualifies as a “continuing violation” than the standard set by the U.S. Supreme Court in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). 

Some courts, however, continue to grant summary judgment to employers in discrimination cases that include NYCHRL claims.  For example, in Ibok v. SIAC and Sector, Inc., No. 05 Civ. 6584, 2009 U.S. Dist. LEXIS 32534 (S.D.N.Y. Mar. 25, 2009) and Wilson v. N.Y.P. Holdings, Inc., No. 05 Civ. 10355, 2009 U.S. Dist. LEXIS 28876 (S.D.N.Y. Mar. 31, 2009), the judges acknowledged the different standards governing NYCHRL claims, but nonetheless granted summary judgment and dismissed the lawsuits in their entirety.

Ominously, however, as noted above, in Zakrzewska v. The New School, 598 F. Supp. 2d 426 (S.D.N.Y. Jan. 26, 2009), the Southern District ruled that the Faragher/Ellerth defense is likely inapplicable to the NYCHRL, which appears intended to “create[ ] 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.”  The court, however, acknowledged that “[its] conclusion is not free from doubt,” and certified an immediate appeal to the Second Circuit to decide the issue. 

The favorable reception accorded to Williams in the federal courts sitting in New York will undoubtedly cause plaintiffs’ lawyers to file more employment discrimination and harassment lawsuits under the NYCHRL.  Thus, it is more important than ever to prevent situations that give rise to complaints.  Anti-harassment and nondiscrimination policies, and internal complaint procedures should be reviewed to ensure that they reflect best practices in the area which, we believe, is a zero-tolerance policy.  It is essential that these policies be thoroughly publicized.  They should appear in the employee handbook, be featured in postings and in articles in employee newsletters and be addressed in new employee orientation and in periodic EEO training.  It is desirable that employees acknowledge in writing their understanding of the contents of these policies.  Finally, we strongly recommend that supervisors receive regular, in-depth training on these policies and on their obligation to respond appropriately to complaints or to any evidence of policy violations.  These preventive measures are effective in forestalling legal complaints and in limiting a company’s liability, since they tend to create and maintain a workplace in which employees are required to treat others in a professional and respectful manner, and in which complaints are addressed quickly and meaningfully.