NY Court of Appeals clarifies what it means to “oppose[]” a discriminatory practice under NYCHRL’s anti-retaliation provision

In Albunio et. al. v. City of New York, 16 NY3d 472 (March 31, 2011), the NY Court of Appeals reaffirmed the breadth of the New York City Administrative Code (“Code”), and in particular its anti-retaliation provision, codified at Code § 8-107 (7).  That section provides, in pertinent part:  “It shall be 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.”  (Emphasis added.)  The Court held that the record supported a jury finding that two employees “opposed” discrimination against a third employee on the basis of the third employee’s perceived sexual orientation.

Plaintiff Albunio (“A”), commanding officer of the Youth Services Section of the NYPD, interviewed and recommended Sergeant Robert Sorrenti (“S”) for a job in which S would have close contact with children.  Plaintiff Connors (“C”) reported to A.  A submitted her recommendation of S for the position to Inspector James Hall (“H”), A’s immediate supervisor.  H interviewed S with A present.

During the interview, H asked S whether he was married and whether he had children, and questioned S “aggressively” about S’s relationship with another male police officer (at one point loudly proclaiming that S and the officer “were more than just friends”).  Following the interview, H told A “that that there was something not right about” S and later chose another person for the open position, telling A that he (H) “found out some fucked up shit about” S and “wouldn’t want him around children.”

Shortly after H’s interview of S, H called C into his office and began to speak to C about S, “angrily and with the use of many expletives.”  H said that “[there] must be more between” a male officer and S, and noted that H “wouldn’t be able to sleep at night knowing that [S] is going to be working around kids.” C told H that he thought S “would be more than qualified to work around kids” and showed H a favorable evaluation S had received.

A later began to hear rumors that she was about to be removed from her position, and asked for (and received) a meeting with H and H’s superior, Deputy Commissioner Frederick Patrick (“P”).  During that meeting, P confirmed that he and H “were contemplating” replacing A.  In response to A’s request for an explanation, H said that A “utilized poor judgment when requesting personnel,” citing S as the primary example. A told H that S “was the better candidate” and said that she would recommend S again.  A was told that “it would be in her best interest to find another assignment”.  She soon did so, and the assignment whe found was “much less desirable than the one she left.”

For his part, C filed a complaint with the NYPD’s EEO office, alleging that H discriminated against S because of S’s perceived sexual orientation.  After filing his complaint, C “suffered a number of adverse employment actions”, including “geographical assignments and hours of work were changed in ways he did not like”, being “shunned and excluded from meetings”, and a “less desirable job” than expected following his transfer.

A and C sued NYC, H, and P for violating the Code’s anti-retaliation provision.  The jury found that NYC and H retaliated against A and C, and awarded damages.  The Appellate Division affirmed the judgment entered on the jury’s verdict, and the Court of Appeals affirmed the Appelate Division.

The Court began by citing the effect of the Local Civil Rights Restoration Act of 2005 (LCRRA) on the interpretation of the New York City Human Rights Law.  The LCRRA, among other things, amended Code § 8-130 to read:

“The provisions of [the New York City Human Rights Law] 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 laws with provisions comparably-worded to provisions of this title, have been so construed.”

Thus, the Court was required to interpret the NYCHRL’s anti-retaliation provision – Code § 8-107 (7) – “like other provisions of the City’s Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.”  It interpreted the word “opposed” according to this principle, and found that the evidence supported a finding that both A and C “opposed discrimination” against S.

The Court easily concluded that C “opposed” a discriminatory practice, as he filed a discrimination complaint on S’s behalf.  The jury could have found that H knew of the complaint and that C suffered adverse consequences as a result.  In light of defendants’ concession that C’s filing was protected activity, the Court dismissed defendants’ arguments (as “perfunctory” and “meritless”) that the jury could not find that the actions taken against C were the result of his protected activity, or that they were adverse.

A’s case was “closer”, as she neither filed a discrimination complaint nor explicitly accused anyone of discrimination before she was ousted as commanding officer of the Youth Services Section.”  While A “observed and listened to” H’s mistreatment of, and unfavorable remarks about, S, she “uttered no word of protest before” her meeting with H and P.  (Indeed, even if the record showed that, before that meeting, H was “displeased with” A and “decided she should be removed from her command because she had recommended an applicant who [H] thought was gay”, it still would not have constituted “retaliation for opposition to discrimination”, absent evidence that A “knew, when she advocated [S]’s transfer, either that [S] was or would be perceived as gay or that [H] was prejudiced against gay people.”  While liability might theoretically have been predicated on Code § 8-107 (20), which prohibits “discrimination against a person because of the actual or perceived . . . sexual orientation . . . of a person with whom such person has a known relationship or association”, A did not assert that section of the NYCHRL.)

The Court went on to conclude that, during A’s meeting with H and P, she “opposed” discrimination.  She did so by “react[ing] to [H]’s criticism of her recommendation of [S] by telling [H] that [S] was the better candidate for the job” and that she “would have recommended [S] again”.  Notably, while A “did not say in so many words that [S] was a discrimination victim, a jury could find that both [H] and [A] knew that he was, and that [A] made clear her disapproval of that discrimination by communicating to [H], in substance, that she thought [H]’s treatment of [S] was wrong.”  Accordingly, in light of the “broad reading” that the Court was required to give to the NYCHRL, it found that A “opposed” the discrimination against S at the meeting.

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