NY Court of Appeals holds plaintiffs cannot sue individual coworkers for discrimination under the NYC Human Rights Law

The New York State Court of Appeals has held that the City Human Rights Law, one of the most expansive in the nation, does not allow plaintiffs to sue co-workers for discrimination, including the creation of a hostile work environment.

The case is Russell v. New York University, issued on April 25. Under Title VII, the federal employment discrimination statute, plaintiffs can only sue their employers. For that reason, and many others, the New York City HRL provides for greater protections, making it easier for plaintiffs to win their cases. The statute has been amended several times over the years to correct "bad" court rulings that, in the City Council's mind, misinterpreted the City law and failed to honor its legislative intent to construe the statute liberally and to avoid simply parroting federal court decisions interpreting Title VII.

In this case, plaintiff sued NYU for employment discrimination under federal and city law. The federal court dismissed the federal claims on summary judgment and declined to exercise jurisdiction over the city law claims, sending the case to New York Supreme Court, which determined that collateral estoppel required the same result as the federal court ruling. The question for the New York Court of Appeals -- the highest court in New York -- is whether plaintiff can get around collateral estoppel by claiming an individual co-workers created a hostile work environment on the basis of gender. The Court writes:

The City HRL expressly provides for liability at the individual employee level, making it “an unlawful discriminatory practice . . . [f]or an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, or immigration or citizenship status of any person . . . [t]o discriminate against such person in compensation or in terms, conditions or privileges of employment.” (Emphasis supplied).

The 6-1 majority holds this language means the only individuals who can discriminate against employees under the City law are those "who wield any ability to dictate or administer the compensation, terms, conditions, or privileges of the plaintiff's employment." The Court reaches that conclusion basis on a plain-language reading of the statute. Co-workers who do not wield that authority over the plaintiff cannot be sued for discrimination under the City law.

In dissent, Judge Rivera argues strongly that the majority got it wrong, noting that its analysis ignores the liberal statutory construction and even favorably cites an Appellate Division ruling on this issue, Priori v. New York Yankees, 307 A.D.2d 67 (1st Dept. 2003), that the City Council in 2005 disavowed in amending the City HRL to provide greater protections for plaintiffs who sue their coworkers. 

The City law does use different language for retaliation cases:

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, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, (v) requested a reasonable accommodation under this chapter, or (vi) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. 

The italicized language says that "any person" cannot retaliate against anyone who engages in protected activity under the statute. That provision was not before the New York Court of Appeals in this case.