| Nelson v HSBC Bank USA |
| 2011 NY Slip Op 06481 [87 AD3d 995] |
| September 13, 2011 |
| Appellate Division, Second Department |
| Lina Nelson et al., Appellants, v HSBC Bank USA et al.,Respondents. |
—[*1]
Harter Secrest & Emery, LLP, Buffalo, N.Y. (Robert C. Weissflach of counsel), forrespondents.
In an action, inter alia, to recover damages for discrimination in employment on the basis ofrace in violation of Executive Law § 296 and Administrative Code of the City of NewYork § 8-107, the plaintiffs appeal from a judgment of the Supreme Court, Kings County(Starkey, J.), entered March 31, 2009, which, upon a jury verdict, is in favor of the defendantsand against them dismissing the complaint.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the causes of action to recover damages based upon a hostile work environmentpursuant to Administrative Code of the City of New York § 8-107; as so modified, thejudgment is affirmed, with costs to the appellants, the jury verdict on the issue of liability basedupon a hostile work environment pursuant to Administrative Code of the City of New York§ 8-107 is set aside, and the matter is remitted to the Supreme Court, Kings County, for anew trial on the causes of action alleging a hostile work environment pursuant to AdministrativeCode of the City of New York § 8-107.
The plaintiffs are four African-American women who worked at a Brooklyn branch of HSBCBank USA. They commenced this action in 2003 alleging discrimination in employment on thebasis of race in violation of the New York State Human Rights Law (Executive Law §296) and the New York City Human Rights Law (Administrative Code of City of NY §8-107). After summary judgment was awarded to the defendants on certain causes of action (see Nelson v HSBC Bank USA, 41AD3d 445 [2007]), the matter went to trial on the causes of action alleging disparatetreatment and hostile work environment pursuant to both the New York State Human Rights Lawand the New York City Human Rights Law. After trial, the jury found in favor of the defendantson all causes of action and a judgment was entered upon the verdict in favor of the defendantsdismissing the complaint. The plaintiffs appeal, and we modify.
The Supreme Court providently exercised its discretion in admitting into evidence thechallenged exhibits (see Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318, 324 [1974]). However, anerror in the charge necessitates remittal to the Supreme Court, Kings County, for a new trial onthe causes of action alleging hostile work environment pursuant to Administrative Code of theCity of New York § 8-[*2]107.
In 2005 the New York City Council enacted the Local Civil Rights Restoration Act of 2005(Local Law No. 85 [2005] of City of NY [hereinafter the Restoration Act]), amending the NewYork City Human Rights Law (Administrative Code of City of NY § 8-101 et seq).The express purpose of the law was "to clarify the scope" of the City's Human Rights Lawbecause it was "the sense of the Council that New York City's Human Rights Law has beenconstrued too narrowly to ensure protection of the civil rights of all persons covered by the law"(Local Law No. 85 [2005] of City of NY § 1). The Council sought to "underscore" that theprovisions of the City's law are to be construed independently of similar provisions of state andfederal human rights laws and declared that interpretations of similarly worded provisions are tobe viewed "as a floor below which the City's Human Rights law cannot fall, rather than a ceilingabove which the local law cannot rise" (Local Law No. 85 [2005] of City of NY § 1).
While there were some other changes, "the core of the measure was its revision ofAdministrative Code § 8-130, the construction provision of the City HRL" (Williams v New York City Hous.Auth., 61 AD3d 62, 66 [2009]; see Gurian, A Return to Eyes on the Prize:Litigating under the Restored New York City Human Rights Law, 33 Fordham Urb LJ 255[2006]). The Administrative Code of the City of New York was amended to state: "Theprovisions of this title shall be construed liberally for the accomplishment of the uniquely broadand remedial purposes thereof, regardless of whether federal or New York State civil and humanrights laws, including those laws with provisions comparably-worded to provisions of this title,have been so construed" (Administrative Code § 8-130). Indeed, it is now beyond disputethat the provisions of the New York City Human Rights Law must be construed "broadly in favorof discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 NY3d472, 477-478 [2011]).
The legislative history of the 2005 amendments conveys that they were undertaken to correcta perceived failure by courts to appreciate the scope of earlier comprehensive amendments to theCity's Human Rights Law in 1991 and to "again underscor[e]" that the protections afforded bythe City's law are not to be limited by restrictive interpretations of similarly worded state andfederal statutes (Rep of Comm on Gen Welfare on Prop. Int. No. 22-A, at 2 [Aug. 17, 2005];see Local Law No. 39 [1991] of City of NY). The Committee report accompanying thebill stated that it "aim[ed] to ensure construction of the City's human rights law in line with thepurposes of fundamental amendments to the law enacted in 1991" (id.), and outlined anumber of principles to guide courts in construing the law, including that discrimination shouldnot play a role in decisions made by employers, that traditional methods and principles of lawenforcement ought to be applied in the civil rights context, and that victims of discriminationsuffer serious injuries, for which they ought to receive full compensation (Rep of Comm on GenWelfare on Prop. Int. No. 22-A, at 2, 5 [Aug. 17, 2005]).
In determining whether statutory enactments should be given retroactive effect, there are twoaxioms of statutory interpretation. "Amendments are presumed to have prospective applicationunless the Legislature's preference for retroactivity is explicitly stated or clearly indicated.However, remedial legislation should be given retroactive effect in order to effectuate itsbeneficial purpose" (Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122 [2001][citation omitted]; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584[1998]). These axioms are helpful guideposts, but "the reach of the statute ultimately becomes amatter of judgment made upon review of the legislative goal" (Matter of OnBank & TrustCo., 90 NY2d 725, 730 [1997]; see Matter of Duell v Condon, 84 NY2d 773, 783[1995]; Morales v Gross, 230 AD2d 7, 12 [1997]). Other factors to consider include"whether the Legislature has made a specific pronouncement about retroactive effect or conveyeda sense of urgency; whether the statute was designed to rewrite an unintended judicialinterpretation; and whether the enactment itself reaffirms a legislative judgment about what thelaw in question should be" (Matter of Gleason [Michael Vee, Ltd.], 96 NY2d at 122).[*3]
The Restoration Act does not expressly state that itsprovisions are to be applied retroactively. However, the Act is remedial in nature. "Remedialstatutes are those 'designed to correct imperfections in prior law, by generally giving relief to theaggrieved party' " (Coffman v Coffman, 60 AD2d 181, 188 [1977], quoting McKinney'sCons Laws of NY, Book 1, Statutes § 35; see Wade v Byung Yang Kim, 250AD2d 323, 325 [1998]; Matter of Hynson [American Motors Sales Corp.—ChryslerCorp.], 164 AD2d 41, 48 [1990]; Matter of City of New York [Long Is. Sound RealtyCo.], 160 AD2d 696 [1990]). The purpose of the Restoration Act was to rewrite unintendedjudicial interpretations and reaffirm the City Council's judgment about the scope of thepreexisting protections of the City's Human Rights Law (see Local Law No. 85 [2005] ofCity of NY § 1; Rep of Comm on Gen Welfare on Prop. Int. No. 22-A, at 2 [Aug. 17,2005]). The Act clarified what the 1991 amendments "[were] always meant to say and do"(Brothers v Florence, 95 NY2d 290, 299 [2000] [internal quotation marks and emphasisomitted]; see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d at 585;Matter of OnBank & Trust Co., 90 NY2d at 731). Further, the Act took effectimmediately, which evinced a sense of urgency (see Local Law No. 85 [2005] of City ofNY § 7; Matter of Gleason [Michael Vee, Ltd.], 96 NY2d at 122).
"The remedial purpose of the amendment would be undermined if it were applied onlyprospectively" (Matter of OnBank & Trust Co., 90 NY2d at 731). Accordingly, thecurrent liberalized standards of construction applicable to the New York City Human Rights Lawshould be applied retroactively (accordAlbunio v City of New York, 16 NY3d 472 [2011]; Williams v New York CityHous. Auth., 61 AD3d at 80; Sorrenti v City of New York, 17 Misc 3d 1102[A],2007 NY Slip Op 51796[U], *6 [2007]; Yanai v Columbia Univ., NYLJ, Aug. 8, 2006, at26, col 6; Loeffler v Staten Is. Univ. Hosp., 582 F3d 268, 279 n 7 [2009]; seeGurian, A Return to Eyes on the Prize: Litigating under the Restored New York CityHuman Rights Law, 33 Fordham Urb LJ 255, 327-330 [2006]) and, therefore, to the extentthat our decision in Barnum v New YorkCity Tr. Auth. (62 AD3d 736 [2009]) holds to the contrary, it should not be followed.
In Williams v New York City Hous.Auth. (61 AD3d 62 [2009]), the Appellate Division, First Department, applied theliberalized standards of construction of the Restoration Act in construing the standards forliability for sexual harassment under the City Human Rights Law (see AdministrativeCode of City of NY § 8-107). State law in this area, mimicking federal law, requires thatharassment be "severe or pervasive" to be actionable (Meritor Savings Bank, FSB vVinson, 477 US 57, 67 [1986]; seeForrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004]). The Court rejected thisformulation for the City Human Rights Law, finding that "there is a wide spectrum of harassmentcases falling between 'severe or pervasive' on the one hand and a 'merely' offensive utterance onthe other" (Williams v New York City Hous. Auth., 61 AD3d at 76). In light of the"uniquely broad and remedial purposes" of the City Human Rights Law (Administrative Code ofCity of NY § 8-130), the Court concluded that "questions of 'severity' and 'pervasiveness'are applicable to consideration of the scope of permissible damages, but not to the question ofunderlying liability" (Williams v New York City Hous. Auth., 61 AD3d at 76; see Farrugia v North Shore Univ. Hosp.,13 Misc 3d 740, 748-749 [2006]).
The Court noted that this construction was consistent with the principles articulated in thelegislative history accompanying the Restoration Act, since it maximizes deterrence, ensures thatdiscrimination plays no role in employment, and recognizes that discrimination violations are,per se, serious injuries (see Williams v New York City Hous. Auth., 61 AD3d at 76-77).The Court concluded that, under the City Human Rights Law, liability for a harassment/hostilework environment claim is proven where a plaintiff proves that he or she was treated less wellthan other employees because of the relevant characteristic. Recognizing, however, that thebroader purposes of the City's law "do not connote an intention that the law operate as a 'generalcivility code,' " (id. at 79, quoting Oncale v Sundowner Offshore Services, Inc.,523 US 75, 81 [1998]), the Court recognized "an affirmative defense whereby defendants canstill avoid liability if they prove that the conduct complained of consists of nothing more thanwhat a reasonable victim of discrimination would consider petty slights and trivialinconveniences" (Williams v New York City Hous. Auth., 61 AD3d at 79-80 [internalquotation marks omitted]). We find the First Department's analysis persuasive and adopt thestandard set forth by that Court for liability for causes of action alleging hostile workenvironment pursuant to the New York City Human Rights Law.[*4]
The charge in this case instructed the jury that proof thatunwelcome racial conduct was "severe and pervasive" is an element of a cause of action alleginghostile work environment pursuant to both the State and City Human Rights Laws. This errorwas not harmless. The jury could have reasonably found that the harassment complained of bythe plaintiffs, while not severe and pervasive, constituted more than petty slights and trivialinconveniences. Accordingly, the judgment must be modified and the matter remitted to theSupreme Court, Kings County, for a new trial on the causes of action alleging hostile workenvironment pursuant to Administrative Code of the City of New York § 8-107. Skelos,J.P., Dickerson, Austin and Cohen, JJ., concur.
Motion by the respondents on an appeal from a judgment of the Supreme Court, KingsCounty, entered March 31, 2009, to strike stated portions of the record on the ground that theycontain matter dehors the record. By decision and order on motion of this Court dated August 16,2010, the motion was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, and upon the argument of the appeal, it is
Ordered that the motion is granted, and pages 1808-1821 of the record are stricken and havenot been considered in the determination of the appeal. Skelos, J.P., Dickerson, Austin andCohen, JJ., concur.