The case is Fincher v. Depository Trust, decided on May 14. As I outlined in this post, the Court of Appeals held that management's failure to investigate an in-house discrimination complaint does not constitute an adverse employment action sufficient to predicate a lawsuit. The failure to investigate is not serious or "material" enough and is not deemed sufficiently punishing to allow the Title VII case go move forward.
But that does not mean that Fincher has no case under the City law. Over the last few years, State appellate courts have issued a series of rulings faithful to the New York City Council's intent to broadly interpret the City law such that, for example, hostile work environments do not require "severe or pervasive" sexual harassment, and, also unlike Title VII, management is strictly liable for supervisory harassment. The below excerpt from Fincher v. Depository Trust provides a good overiew of what's going on these days:
New York State courts and district courts in this Circuit have concluded, to the contrary, that the retaliation inquiry under the CHRL is "broader" than its federal counterpart. See Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 71, 872 N.Y.S.2d 27, 34 (1st Dep't 2009). Under the CHRL, retaliation "in any manner" is prohibited, and "[t]he retaliation ... need not result in an ultimate action with respect to employment ... or in a materially adverse change in the terms and conditions of employment." N.Y.C. Admin. Code § 8-107(7); see also Williams, 61 A.D.3d at 69-72, 872 N.Y.S.2d at 33-35; Sorrenti v. City of New York, 17 Misc. 3d 1102(A), 851 N.Y.S.2d 61 (Table) (N.Y. Sup. Ct., N.Y. Cty. 2007) (unreported decision) ("[T]he City Council enacted a less restrictive standard [than the federal and state standard] to trigger a [CHRL] violation in that it is now illegal to retaliate in any manner."); Pilgrim v. McGraw-Hill Cos., Inc., 599 F. Supp. 2d 462, 469 (S.D.N.Y. 2009) ("The prima facie standard for retaliation claims under the CHRL is different [from the federal and state standard], in that there is no requirement that the employee suffer a materially adverse action. Instead, the CHRL makes clear that it is illegal for an employer to retaliate in 'any manner.'").
The State courts are still working out any functional differences between State and Federal retaliation law, however. The Appellate Division in Manhattan "rejects a materiality requirement," while under the Supreme Court's interpretation of Title VII, federal retaliation claims must involve an action by the employer that is "materially adverse." In a case like this, "the proper inquiry under the CHRL is whether a jury could 'reasonably conclude from the evidence that [the complained-of] conduct [by the employer] was, in the words of the [CHRL], reasonably likely to deter a person from engaging in protected activity,' without taking account of whether the employer's conduct was sufficiently deterrent so as to be "material."
This is all very interesting, to be sure, and the Second Circuit is surely enjoying the intellectual feast raised by this issue, so much so that it cites an unpublished State trial court decision to outline the possible scope of the City law. But the Court of Appeals does not decide whether Fincher has a retaliation claim under the City law because she did not pursue that issue on appeal, for whatever reason. Waiver in the Second Circuit carries the same definition in everyday life. You snooze, you lose.