August 01, 2011
A recent decision by New York State’s highest court provides a reminder to New York City employers of the robust provisions of the New York City Human Rights Law (“NYCHRL”) that make this legislation more rigorous than its federal counterpart, Title VII. Albunio v. City of New York, 947 N.E.2d 135 (N.Y. 2011) does not, in and of itself, establish any new standards for civil rights enforcement in New York City, but it provides a striking example of how employers should expect courts to interpret the broad scope of the NYCHRL’s protections against retaliatory conduct.
The Restoration Act
The NYCHRL is the local law in New York City that, inter alia, protects employees from discrimination in the workplace. It includes an anti-retaliation provision. In 2005, the City Council enacted the Local Civil Rights Restoration Act (the “Restoration Act”) in order “‘to clarify the scope of the [NYCHRL],’ which, the Council found ‘[had] been construed too narrowly to ensure protection of the civil rights of all persons covered by the law.’” Albunio at 137, quoting 2005 N.Y.C. Local Law. No. 85, § 1. Most notably, the Restoration Act amended part of the NYCHRL, Administrative Code § 8-130, to read, “‘The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those with provisions comparably-worded to provisions of this title, have been so construed.’” Albunio at 137.
Four years later, the First Department of the Appellate Division was presented for the first time with the opportunity to construe the Restoration Act in the case of Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27 (N.Y. App. Div. 2009) leave to appeal denied, 13 N.Y.3d 702 (2009). Williams interpreted the Restoration Act’s revisions to § 8-130 as an explicit requirement that courts give the NYCHRL “an independent liberal construction analysis in all circumstances, even where State and federal civil rights laws have comparable language.” Williams, 872 N.Y.S.2d at 31. Further, the court explained that such an analysis “must be targeted to understanding and fulfilling what the statute characterizes as the City HRL’s ‘uniquely broad and remedial’ purposes, which go beyond those of counterpart State or federal civil rights laws.” Id.
To understand the “uniquely broad and remedial” purposes of the NYCHRL, the Williams court looked to the law’s text and legislative history, and determined that the law’s purposes “‘meld the broadest vision of social justice with the strongest law enforcement deterrent.’” Id. at 32 (citation omitted). After reviewing prior amendments to the NYCHRL, the court concluded that “‘[i]n case after case, the balance struck by the Amendments favored victims and the interests of enforcement over the claimed needs of covered entities in ways materially different from those incorporated into state and federal law.’” Id. The court added, “Whether or not that desire is wise as a matter of legislative policy, our judicial function is to give force to legislative decisions.”
Finally, the court provided a framework for interpreting the NYCHRL in the wake of the Restoration Act, declaring that courts should “first identify the provision of the City HRL [that the court is] interpreting and then ask, as required by the City Council: what interpretation ‘would fulfill the broad and remedial purposes of the City’s Human Rights Law?’” Id. at 37 (citation omitted).
The Albunio Case
When Albunio v. City of New York reached the New York Court of Appeals, the State’s highest court was provided with an opportunity to provide practical guidance as to how this liberal interpretation of the NYCHRL should be applied.
The pertinent facts of the case are as follows. Captain Lori Albunio was the commanding officer of the New York City Policy Department’s Youth Services section. In April 2002, a position opened up in DARE, a Youth Services program in which officers educate students about the dangers of drugs. Albunio wanted Sergeant Robert Sorrenti to fill this open position, so she submitted her request to her immediate supervisor, Inspector James Hall. Hall then interviewed Sorrenti himself, with Albunio present as well.
The facts thereafter were disputed, but the jury could have found as follows. At the interview, Hall asked Sorrenti whether he was married and whether he had children, and aggressively questioned Sorrenti about his relationship with another male police officer, for example by saying, “You were more than just friends.” Subsequently, Hall chose someone else for the open job, and told Albunio that he “wouldn’t want [Sorrenti] around children.” Albunio at 136.
Later that year, Albunio heard a rumor that she was going to be replaced. At a meeting with Hall, Deputy Commissioner Frederick Patrick, and Albunio, Patrick confirmed that they were “contemplating” replacing Albunio. When Albunio asked why, Hall said that it was because she had “‘utilized poor judgment when requesting personnel,’ citing Sorrenti as the primary example.” Id. Albunio responded, “‘Sorrenti was the better candidate . . . [and] [i]f I had to do it all again, I would have recommended Sorrenti again.’” Id. Albunio was advised to find another assignment, which she did, albeit a much less desirable one than her previous post. This series of events led Albunio to bring an action against the City, Hall and Patrick, alleging violations of the NYCHRL’s anti-retaliation provision. A jury found for Albunio, and the City appealed all the way up the ladder.
Section 8-107(7) of the New York City Administrative Code, makes it an “unlawful discriminatory practice . . . to retaliate or discriminate in any manner against any person because such person has opposed any practice forbidden under this chapter.” The question before the Court of Appeals in Albunio was “whether the record [supported] the jury’s finding that Albunio . . . ‘opposed’ discrimination against Sorrenti on the basis of Sorrenti’s perceived sexual orientation (a practice forbidden [under the NYCHRL]).” Id. at 137.
Despite the relatively scant evidence that Albunio had “opposed” discrimination against Sorrenti on the basis of his perceived sexual orientation, the Court of Appeals affirmed the jury’s finding in favor of Albunio. Noting first that, pursuant to the Restoration Act, § 8-107(7) must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible,” the Court found that there was sufficient evidence to conclude that Albunio had “opposed” discrimination against Sorrenti despite the fact that “she had neither filed a discrimination complaint nor explicitly accused anyone of discrimination.” Id. at 137-38.
Albunio’s sole act that could have been deemed “opposition to discrimination” was her statement at the meeting with Hall and Patrick that if she “had to do it all again, [she] would recommend Sorrenti again.” This statement was hardly clear evidence that she opposed discrimination against Sorrenti because of his perceived sexual orientation. But in construing the word “opposed” according to the NYCHRL’s “uniquely broad and remedial” purposes, the Court concluded, “While [Albunio] did not say in so many words that Sorrenti was a discrimination victim, a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall’s treatment of Sorrenti was wrong.” Thus, “[b]earing in mind the broad reading” that must be given to the NYCHRL, the Court held that sufficient evidence existed to find that Albunio opposed discrimination. Id. at 138.
Comparison to Title VII
Would a lone statement of “if I had to do it again, I would” constitute “opposition to discrimination” under Title VII of the Civil Rights Act of 1964? It very well may not.
The most noteworthy recent decision in the context of Title VII’s “opposition clause” came in Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn., 129 S.Ct. 846 (2009). While this decision did expand the clause’s protective powers, it in no way indicated that the clause could reach as far as the NYCHRL’s opposition clause reached in Albunio.
Crawford involved an employee who spoke out about discrimination “not on her own initiative, but in answering questions during an employer’s internal investigation.” Crawford, 129 S.Ct. at 849. The Supreme Court addressed the circuit split on whether such conduct was protected by Title VII’s anti-retaliation provisions, or whether the “opposition clause” demands more active and consistent opposition (i.e. instigating a complaint) in order to fall under its umbrella of protection. The court held that “a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in [Title VII] requires a freakish rule [otherwise].” Id. at 851.
While the Crawford decision discussed a more expansive anti-retaliation protection, just as the Albunio decision did, the relative points on the “opposition to discrimination” spectrum at which these decisions were made demonstrates how the employee-protective measures of the NYCHRL, as strengthened by the Restoration Act, have surpassed those of Title VII. To start, consider the facts in the federal case: an employee responded to a question about whether she had witnessed any “inappropriate behavior” by describing in great detail several instances of sexually harassing behavior that had been directed towards her. The Sixth Circuit found that Title VII did not protect her from retaliation because she was merely answering questions instead of instigating a complaint herself, and it took the Supreme Court to resolve the open question of whether the reach of Title VII’s opposition clause protects this individual from retaliation.
Compare that scenario to the one that came before the New York Court of Appeals: Captain Albunio didn’t just fail to instigate a complaint on her own; she failed to complain at all. She merely said at a meeting with two superiors that she believed Sergeant Sorrenti was the right man for the job and that she would recommend him again. There was never any acknowledgement of Sorrenti’s perceived sexual orientation by anyone at that meeting, much less a clear statement from Albunio that she believed Sorrenti had been passed over for the job because of this perception and that she opposed such a decision. But in construing the NYCHRL “broadly in favor of discrimination plaintiffs,” the court held that this comment constituted sufficient opposition to discrimination, even as indirect and ambiguous as it was.
Both Albunio and Crawford presented “close calls” under the opposition clauses of their respective statutes, as evidenced by the fact that they reached the highest courts in New York State and the United States, respectively. But while the “close call” Title VII case involved clear statements of opposition that were simply not made on the employee’s own initiative, the “close call” NYCHRL case involved a far less active or direct statement of opposition. This contrast tells us that these two statutory schemes are no longer operating at the same point on the spectrum; rather, the NYCHRL’s anti-retaliation protections have surpassed those of Title VII.
Although the Restoration Act has been on the books since 2005, its effects have been felt only more recently, as Williams (in 2009) laid the groundwork for decisions like Albunio from earlier this year. Given that Albunio was decided by New York’s highest court, courts may continue to interpret the NYCHRL liberally in favor of employees. Plaintiffs are likely to be more aggressive in pursuing discrimination and retaliation claims because of the favorable treatment that they may believe they will receive under the NYCHRL.
Plaintiffs are likely to argue that the Restoration Act does not apply solely to the “opposition clause,” or even merely to the anti-retaliation provision. Rather, they likely will contend that all provisions of the NYCHRL are to be construed in as employee-friendly a way as reasonably possible. Granted, federal and state laws have long provided strong protections for employees against discrimination and retaliation, so the Restoration Act should not require any sea changes in how employers conduct their businesses. Furthermore, retaliation cases traditionally have been very fact-specific, so the case-by-case nature of courts’ analyses of these claims is unlikely to change. However, employers in New York City should be aware that plaintiffs and courts may argue that their grounds for asserting claims of retaliation by employees in New York City have been strengthened by the Restoration Act.
Jeffrey S. Klein and Nicholas J. Pappas are partners at Weil, Gotshal & Manges LLP, where they practice labor and employment law. Ami Zweig, an associate in the firm’s Employment Litigation Practice Group, assisted with the preparation of this article.
Reprinted with permission from the August 1, 2011 edition of the New York Law Journal © 2011 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.
This article also appeared in the July-August 2011 Employer Update.