New York City's Broad Definition of Harassment
Earlier this year, the New York Supreme Court's Appellate Division interpreted the New York City Human Rights Law (NYC HRL) much more broadly than courts have interpreted New York State and federal employment laws prohibiting discrimination, harassment and retaliation. Under state and federal anti-discrimination laws, an employee must prove that harassment was "severe or pervasive." That means harassment does not violate New York State or federal law unless it is sufficiently harmful or frequent that it significantly impacts the terms and conditions of employment. However, the Appellate Division ruled that harassment does not need to be severe or pervasive to violate the NYC HRL.
New York City's Human Rights Law applies not only to employees who work in New York City, but also applies if the discrimination, harassment, or retaliation originated in New York City.
According to that case, Williams v. The New York City Housing Authority, the primary issue in harassment cases under the NYC HRL is whether the employee can prove that the employer treated him or her worse than other employees because he or she is a member of a legally protected category. The legally protected categories for employees under the New York City law are race, color, national origin, creed, age, disability, gender, gender identity, sexual orientation, marital status, partnership status, alienage, citizenship status, arrest or conviction record, and status as a victim of domestic violence, stalking or sex offense.
In applying this broad interpretation of New York City's anti-discrimination law, the appellate court relied on the New York City Restoration Act of 2005, which amended the NYC HRL to require that it "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 . . . have been so construed." The Court also noted that the New York City Council has directed courts that "discrimination should not play a role in decisions made by employers."
New York City's Broad Definition of Retaliation
The appellate court also interpreted the anti-retaliation provision of the New York City Human Rights Law very broadly. It did so because the Law was amended in 1991 to prohibit retaliation "in any manner." As a result, the Court ruled that retaliation does not have an adverse impact on the terms and conditions of employment to be prohibited by the NYC HRL. This is in contrast to New York State and federal law, both of which require retaliation to materially impact of the terms and conditions of employment for it to be actionable. In other words, as the appellate court put it, retaliation is prohibited by the NYC HRL "regardless of the degree or quality of harm to the particular complainant" because "retaliation harms the public interest by deterring others from filing a charge" of discrimination.
However, the Court did not interpret retaliation without limitations. Rather, it ruled that retaliatory or discriminatory acts "must be reasonably likely to deter a person from engaging in protected activity" to be protected by the New York City NYC HRL.
Williams recognizes that the NYC Human Rights Law is an extraordinarily broad employment law. However, it is not without limits. For example, it states that it does not intend to interpret the Law as a "general civility code." Accordingly, it recognized that employers can avoid liability for discrimination, harassment, or retaliation if they can prove the alleged conduct toward was "nothing more than what a reasonable victim of discrimination would consider "petty slights and trivial inconveniences.'"