§1.1 II. Specific Provisions Of New York Statutory Law
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II. Specific Provisions of New York Statutory Law
New York's Division of Human Rights declares that New York State
has the proud distinction of being the first state in the nation to enact a Human Rights Law, which affords every citizen "an equal opportunity to enjoy a full and productive life." This law prohibits discrimination in employment, housing, credit, places of public accommodations, and non-sectarian educational institutions, based on age, race, national origin, sex, sexual orientation, marital status, disability, military status, and other specified classes. 15
New York's law dates back to an early version in 1951.16
The New York State Human Rights Law applied to employers of four or more persons, until February 8, 2020, at which time the Amendments Act signed by the Governor on August 12, 2019, reduced the number of employees for covered entities to one.17 Under the old law, though, there was an exception for cases of sexual harassment, where all employers in New York were covered by the law, whether employers of one or more persons.18
The New York State Human Rights Law (Executive Law) specifically provides at § 291:
1. The opportunity to obtain employment without discrimination because of age, race, creed, color, national origin, sexual orientation, military status, sex, marital status, or disability, is hereby recognized as and declared to be a civil right.
2. The opportunity to obtain education, the use of places of public accommodation and the ownership, use and occupancy of housing accommodations and commercial space without discrimination because of age, race, creed, color, national origin, sexual orientation, military status, sex, marital status, or disability, as specified in section two hundred ninety six of this article, is hereby recognized as and declared to be a civil right. 19
Furthermore, New York State Civil Rights Law § 40-c, cross-referencing Human Rights Law § 292, provides:
1. All persons within the jurisdiction of this state shall be entitled to the equal protection of the laws of this state or any subdivision thereof.
2. No person shall, because of race, creed, color, national origin, sex, marital status, sexual orientation, gender identity or expression, or disability, as such term is defined in section two hundred ninety-two of the executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision of the state. 20
Caselaw has made abundantly clear that if a claim by a plaintiff will satisfy and sustain a cause of action under the Human Rights Law, then the same set of alleged facts will also sustain a claim under the Civil Rights Law, and vice versa.21
It is also important to recognize that the provisions of the New York State Executive Law concerning human rights do not extend to extraterritorial violations (those taking place outside of New York State) unless they are against a New York resident. The relevant statutory language of § 298-a is:
1. The provisions of this article shall apply as hereinafter provided to an act committed outside this state against a resident of this state or against a corporation organized under the laws of this state or authorized to do business in this state, if such act would constitute an unlawful discriminatory practice if committed within this state.
2. If a resident person or domestic corporation violates any provision of this article by virtue of the provisions of this section, this article shall apply to such person or corporation in the same manner and to the same extent as such provisions would have applied had such act been committed within this state except that the penal provisions of such article shall not be applicable. 22
However, courts have since made clear that, although a New York resident corporation could be liable for discriminatory actions outside of New York State, those actions also have to be against a New York resident.23 Thus, if a domestic New York corporation, partnership or limited liability company, having offices in another state, acts in a discriminatory manner against a resident of that state (thus not a resident of New York) in that state, there is no claim under the New York State Human Rights Law.24
Both the New York State and New York City Human Rights Laws contain three-year statutes of limitations for claims to be brought in court (see Chapter Five for administrative filing deadlines).25 Furthermore, the standard required to state a claim under the laws resembles that under federal law, as discussed in later sections of this book. As stated by then-New York State Chief Judge Judith S. Kaye, in the seminal case Forrest v. Jewish Guild for the Blind:26
A plaintiff alleging racial discrimination in employment has the initial burden to establish a prima facie case of discrimination. To meet this burden, plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination." 27
This has been deemed the standard necessary for religious discrimination and gender discrimination, as well.28 In McNabb v. MacAndrews & Forbes Group, Inc., then-Chief U.S. District Judge Charles L. Brieant of the Southern District of New York, ultimately determined that the plaintiff could not succeed in defeating a motion for summary judgment because plaintiff could not satisfy two of the four elements that hinged on the same issue: "[s]pecifically, plaintiff . . . failed to demonstrate that he was fired."29
Under New York State law, since the Amendments Act in the summer of 2019, a showing of "severe and pervasive" action on the part of the employer—or continuing and pervasive or severe as it was also known—is no longer required. That is in contrast to what is still required under federal law, as discussed later. An employee making a claim under New York law need now only show that they are treated less well than other employees.30 This was previously the standard under the New York City Human Rights Law.31
The reader should also be aware that, in July 2019, Governor Andrew Cuomo signed amendments to the Dignity for All Students Act,32 making it illegal to discriminate against someone on the basis of their hairstyle both in schools and the workplace. Such provision was put into place because, oftentimes, that form of discrimination accompanies race/gender discrimination. Thus, the amendments added language to the statute section to the effect of: "9. 'Race' shall, for the purposes of this article include traits historically associated with race, including but not limited to, hair texture and protective hairstyles. 10. 'Protective hairstyles' shall include, but not be limited to, such hairstyles as braids, locks, and twists."33 The amendment was also made to the provisions of the New York Executive Law.34 New York was the second state, following California, to expand this protection.35 Since February of 2019, New York City's Human Rights Commission prohibited discrimination based on hairstyles in workplaces, along with schools and public places.36
Additionally, as a separate matter for inclusive workplaces, employers should be aware of the provisions of New York Labor Law § 201-d. That statute provides, in pertinent part:
2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:
a. an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal, provided, however, that this paragraph shall not apply to persons whose employment is defined in paragraph six of subdivision (a) of section seventy-nine-h of the civil rights law, and provided further that this paragraph shall not apply to persons who would otherwise be prohibited from engaging in political activity pursuant to chapter 15 of title 5 and subchapter III of chapter 73 of title 5 of the USCA;
b. an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property;
c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property; or
d. an individual's membership in a union or any exercise of rights granted under Title 29, USCA, Chapter 7 or under article fourteen of the civil service law. 37
Disputes sometimes arise over what particular activities are included and protected under § 201-d. What are "recreational activities"? What are political activities? For instance, if a workplace prohibits dating or fraternization amongst the staff, is that a violation of the statute? No, according to the caselaw.38 What about support of a political candidate or cause? For instance, if an employee is a candidate for elective office, or is a campaign manager or treasurer for a campaign, a fundraiser host, or otherwise campaigns for a candidate and is terminated because the employer supports an opposing candidate, is that a violation under the statute? Yes, again according to the caselaw on the matter.39
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