Plaintiff, a South Asian-American woman, filed this suit against the Defendant asserting employment discrimination claims. She alleged that she was subjected to discrimination on account of her sex and race while working as a reporter in Defendant's Washington, D.C. bureau.
In 2018, concluding that she could no longer advance her career in the Washington, D.C. bureau, she "appl[ied] for various positions" at Defendant's New York bureau and expressed interest in an open United Nations reporter position that was ultimately was filled by a man who allegedly had less practical experience than Plaintiff and less formal education. After her managing editor in Washington, D.C. told Plaintiff that Defendant decided not to convert the U.N. job to a " 'diversity slot,' " she understood that she would only be considered for promotions to positions identified as such.
In June 2018, claiming that she was constructively discharged, Plaintiff informed her team leader and managing editor that she could no longer work for Defendant because of the discrimination that she had encountered and left Defendant's employ. Two years later, Plaintiff, then a California resident, commenced "this class action in New York State court."
She asserted, among other causes of action, individual claims under the State and City Human Rights Laws, contending that Defendant discriminated against her on the basis of sex and race by denying her promotions.
Defendant removed the case to federal court and a United States District Court for the Southern District of New York granted Defendant's motion to dismiss all of Plaintiff's claims under both Human Rights Laws. Acknowledging that other cases from the Southern District had reached the opposite conclusion in analogous circumstances, the Second Circuit reserved decision on Plaintiff's appeal and certified the following question to the New York State Court of Appeals:
"Whether a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement of the New York City Human Rights Law or the New York State Human Rights Law if the plaintiff pleads and later proves that an employer deprived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds".*
Given the policy implications involved and the lack of controlling authority, the Second Circuit determined that certification was appropriate,New York State's Court of Appeals accepted the certified question (see 39 NY3d 1061 [2023]), and answered it in the affirmative, noting that the New York City Council and the New York State Legislature have enacted laws banning discrimination, including employment discrimination, from within their geographic boundaries and held "that the New York City and New York State Human Rights Laws each protect nonresidents who are not yet employed in the city or state but who proactively sought an actual city- or state-based job opportunity."
The State Court of Appeals explained that for the purposes of the impact test, a failure to hire or promote case is distinct from a discriminatory termination case. The plaintiff in Hoffman** was not a New York inhabitant and did not seek to become one. In contrast, a nonresident who engaged in affirmative conduct to obtain an actual job opportunity based in New York City or State sought to become an inhabitant or person within those geographical boundaries "has satisfied the requirement that the alleged discriminatory act had an impact within the boundaries of New York City". In the words of the Court of Appeals, Plaintiff's "rejection from the position denied her the opportunity to work in New York City," thus providing the necessary New York City workplace nexus for her claim of a City Human Rights Law covered injury.
The Court of Appeals opined that the Second Circuit "recognized that a ruling for [Defendant] 'would serve to immunize employers from liability' under the Human Rights Laws 'for discriminatory conduct pertaining to New York City- or State-based jobs' even when the discriminatory conduct has an impact in New York (58 F4th at 71). We cannot conclude that the legislature and city council intended to give New York employers a license to discriminate against nonresident prospective employees and, thus, we may not adopt such a narrow construction of the statutes. Accordingly, the certified question should be answered in the affirmative."
Opinion by Judge Singas. Chief Judge Wilson and Judges Rivera, Garcia, Cannataro, Troutman and Halligan concur.
* 58 F4th 64, 71 [2d Cir 2023].
** Hoffman v Parade Publs, 15 NY3d 285.
Click HERE to access the decision of the New York Court of Appeals posted on the Internet.