New York of one of the greatest economic centers on Earth. Given that reality, it is unsurprising that the array of applicants for work in New York includes far more than just New Yorkers. Some come from just across the Hudson River, while others come from halfway across the planet. When an employer illegally denies New York employment to an applicant for discriminatory reasons, that worker should be entitled to hire a New York employment discrimination lawyer and pursue the remedies available under New York City and New York State law. Depending on the outcome of a case currently before New York’s highest court, the law may soon be clear that they are, in fact, allowed to do exactly that.
The discrimination case began when an employee, N.S., initiated a race and gender discrimination lawsuit against Bloomberg L.P. in August 2020. A few months later, N.N., another female employee, joined the lawsuit.
Each woman’s circumstances differed in some ways. N.S. was a reporter working in Washington, D.C. and a woman of South Asian ancestry. N.N. was a news producer working in New York City and a woman of African ancestry. However, both employees’ situations had critical commonalities: both were women of color who worked for Bloomberg and both allegedly had suffered workplace harm because of their gender and their races. On those bases, both asserted claims under state law (the New York State Human Rights Law,) and city law (the New York City Human Rights Law.) (N.N. also alleged a violation of federal law (Title VII).)
The producer, as an employee working in New York City, had a clearer path to success. Indeed, even though the trial court decided in 2021 that the producer committed a procedural error when she failed to exhaust her federal administrative remedies (which is to say she neglected to file a complaint with – and get a “right to sue” letter from — the U.S. Equal Employment Opportunity Commission,) which triggered a dismissal of the producer’s Title VII claim, the court also decided in that same order that the producer adequately alleged the bulk of her NYSHRL and NYCHRL claims and could go forward on those grounds.
The reporter faced a higher legal hurdle. The court order from 2021 tossed her NYSHRL and NYCHRL claims on technical grounds. Although the reporter alleged that she applied for positions with the employer in New York and was denied those jobs because of her gender and/or race, the court concluded that, because the reporter spent her entire career with the employer working either in Dubai or D.C., the reporter did not “feel the impact” of the employer’s alleged discrimination in New York, and so the law required dismissal of her claims.
The court looked to a 2010 decision from the New York Court of Appeals (Hoffman v. Parade Publications) that pronounced an “impact test” for deciding whether or not a worker who neither lived nor worked in New York could sue under the NYSHRL and/or the NYCHRL. The Hoffman court decided that, even if yours was a New York employer, the law recognizes the impact of employment discrimination as something you feel where you are. Because the reporter was in Washington, D.C. when all the alleged New York opportunity-related discrimination took place, she felt the impact in D.C. and couldn’t sue under the NYSHRL or the NYCHRL, the court said.
Revisiting the Impact Test
The reporter appealed her dismissal to the Second Circuit of Appeals. Rather than affirming or reversing the dismissal, the federal appeals court asked New York’s highest court to weigh in first. The 2d Circuit concluded that neither the Hoffman ruling nor any other of the New York Court of Appeals’ existing precedents were exactly on point, and with good reason. In the Hoffman case, the employee lived in Georgia and worked in the employer’s Atlanta, Georgia office. He alleged discriminatory termination in violation of the NYCHRL and the NYSHRL, and claimed jurisdiction because the employer mailed the termination letter from the company’s New York City headquarters. That, the court said, did not amount to an impact felt in New York.
N.S.’s circumstance clearly was different, as she alleged that illegal discrimination was the reason she did not secure New York City employment with the employer. As a result, the 2d Circuit asked the New York Court of Appeals to answer the question posed by N.S.’s specific situation: “whether a nonresident plaintiff not yet employed in New York City or State satisfies the NYCHRL or NYSHRL impact requirement if the plaintiff pleads and later proves that the employer deprived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds.”
This past February, the New York Court of Appeals agreed to rule on the question. While both sides have completed their submission of all briefs, the court has not issued a ruling, and may not for several more months.
A decision in favor of the reporter would be a major boon for workers. The NYSHRL and the NYCHRL are both more worker-friendly than federal law when it comes to securing relief for employment discrimination. A ruling for N.S. would recognize that when an applicant from out of state loses out on a New York job because the employer engaged in illegal discrimination, that worker should be entitled to avail herself of the legal remedies the NYCHRL and the NYSHRL afford her.
An Additional Success Achieved by the Second Employee
In recent weeks, the producer, N.N., also received good news. The same federal court that tossed the reporter’s NYCHRL and NYSHRL claims (the Southern District of New York,) granted the producer’s motion for reconsideration and revised its earlier ruling, thereby expanding the array of bases upon which the producer could proceed.
The court had rejected the employer’s motion to dismiss the producer’s NYCHRL and NYSHRL claims on almost all grounds, but had tossed two state and city law bases: disparate impact and failure to promote. In late June, the court revived the producer’s disparate impact claim.
Because the producer filed her NYSHRL disparate impact claims before 2019, she was required to meet the standards that existed before the legislature passed key amendments to that law in 2019. The pre-amendment standard required an employee (1) to identify a specific employment practice or policy, (2) show that a disparity existed, and also (3) prove that the policy caused the disparity. The court initially decided that the producer failed to clear the third hurdle, causation.
Upon reconsideration, the court looked at that the reporter’s third amended complaint, which alleged that the employer gave its Editorial Management Committee “discretionary control” over pay decisions and that the gender wage gap among producers at Bloomberg was greater than the industry as whole. The court concluded that the producer has sufficiently pled that the practice of giving the committee that discretionary control caused a discriminatory disparity in pay, meaning that all three requirements were satisfied.
Employment law is an ever-changing body. That’s one of many crucial reasons why, if you’ve endured harm as a result of employment discrimination, it pays to get the right legal representation. The knowledgeable New York gender discrimination attorneys at Phillips & Associates proudly offer our clients insightful advice, zealous advocacy, and legal knowledge that is both in-depth and fully up-to-date to help you get the justice you deserve. Contact us online or at (833) 529-3476 to set up a free and confidential consultation today.