Second Circuit asks State Court of Appeals for guidance on State and City Human Rights Law

The Second Circuit is asking the New York Court of Appeals to interpret the New York State and City Human Rights Laws on an esoteric issue that no one seems to have definitively resolved just yet.

The case is Syeed v. Bloomberg LP, issued on January 23. The Second Circuit from time to time asks the state's highest court to interpret a state or city law so the state judges, who are presumably more familiar with the issue, can provide their unique guidance. The federal judges do not want to resolve unsettled state and city issues without giving the State Court of Appeals a chance to weigh in on the issue. This is one such case.

The issue is the scope of the New York State and City Human Rights Laws, which provide far greater employee protections than federal employment discrimination statutes. Plaintiff in this case obtained a position with Bloomberg LP's Washington, D.C., office as a news reporter. In 2018, she applied to work at Bloomberg's New York City office. She was denied the position, which was offered to a male candidate. Someone at the company told plaintiff that her position was not designated as a "diversity slot." After complaining to management that the company had a racist and sexist culture, plaintiff quit her job.

Plaintiff wants to proceed under the State and City laws, but Bloomberg argues that she cannot because she did not feel the impact of any discrimination in New York City or New York State. That argument stems from a New York State Court of Appeals ruling, Hoffman v. Parade Publications, 15 N.Y.3d 285 (2010), which said the employment discrimination plaintiff who worked and lived in Georgia could not get relief under the City law even though he worked for a New York City company. The State Court of Appeals ruled that way based on the City law's legislative history, which emphasized that the City law protects the City's inhabitants.

The question now is whether Hoffman precludes plaintiff in the Bloomberg case from invoking the state and city law where, but for the employer's discriminatory conduct, she would have worked in New York City or New York State. This issue has particular relevance in failure-to-hire and failure-to-promote cases. While the Second Circuit (Jacobs, Sullivan and Perez) looked for guidance in state appellate rulings on this issue, it found nothing that clearly points in one direction or another. The Circuit has look around for this guidance  before it asks the State Court of Appeals to intervene, as the state judges are busy enough and have their own problems to worry about.

A footnote to this case points out that a case I argued a few years ago touched on this issue, but that was not a binding precedential ruling but a non-binding summary order. See Ware v. L-3 Vertex Aerospace, LLC, 833 F. App’x 357, 358–59 (2d Cir. 2020) (in a hostile-work-environment and retaliatory-termination case, holding that a plaintiff who was a Florida resident, worked as a supply technician in Afghanistan, and signed an employment agreement with a Mississippi choice-of-law provision, did not satisfy the NYCHRL or NYSHRL impact requirement by virtue of his employer’s parent company being headquartered in New York). 

Once the State Court of Appeals issues a ruling on this issue, the Second Circuit will apply that reasoning to the Bloomberg case and this issue will be settled once and for all.