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Posts Tagged ‘New York City Human Rights Law’

N.Y. Federal Judge Refuses to Remand Sexual Orientation Discrimination Claim to State Court

Posted on: February 28th, 2016 by Art Leonard No Comments

Elizabeth Koke filed an action in New York State Supreme Court against the City University of New York, The Feminist Press and its executive director, Jennifer Baumgardner, alleging that she suffered unlawful employment discrimination because of her gender and actual or perceived sexual orientation in violation of Title VII and the New York State and City Human Rights laws, and also asserting other state law claims. CUNY, “with the consent of the other defendants,” removed the case to federal district court, where it was assigned to U.S. District Judge Lewis Kaplan (S.D.N.Y.). Removal was grounded on the inclusion of a Title VII claim, which gives the federal district court “original jurisdiction.”  Koke then moved to remand the case back to state court, unless Judge Kaplan was willing to issue a declaratory judgment that her “Title VII claims of discriminatory treatment are valid and that Title VII is applicable to this matter.”  Koke v. Baumgardner, 2016 U.S. Dist. LEXIS 1979, 2016 WL 93094 (Jan. 5, 2016).  Judge Kaplan refused to remand the matter.

Kaplan’s opinion does not mention any of the particulars of Koke’s discrimination charges, focusing primarily on the issue of sexual orientation discrimination under Title VII. The 2nd Circuit ruled in Simonton v. Runyon, 232 F. 3d 33 (2000), that sexual orientation discrimination claims  are not actionable under Title VII, but that claims of discrimination against a plaintiff because she fails to conform to sex stereotypes could be actionable as sex discrimination claims under that statute.  Judge Kaplan took note of the EEOC’s decision last summer in the Baldwin case (2015 WL 4397641, 2015 EEOPUB LEXIS 1905 (July 16, 2015)) that “sexual orientation is inherently a sex-based consideration,” thus rendering all sexual orientation discrimination cases actionable under Title VII.  Of course, as a district judge within the 2nd Circuit, Kaplan is bound by Simonton and may not recognize Koke’s sexual orientation discrimination claim as actionable unless the case presents sex stereotype issues, regardless of what the EEOC has said, until such time as the 2nd Circuit changes its position or the Supreme Court definitively pronounces on the issue.

“It remains to be seen,” he wrote, “whether plaintiff has stated, or can prove, a Title VII claim related to her professed sexual orientation, given that she probably cannot state a legally sufficient Title VII claim based on sexual orientation alone absent a change in law.  But even if she has not and cannot plead or make out such a claim, this would be a case over which the federal courts ‘have original jurisdiction’ for two reasons.  First, plaintiff sues under Title VII.  The jurisdictional inquiry, which is the critical point with respect to removability, is distinct from whether a complaint states a legally sufficient claim for relief except where the complaint is ‘wholly insubstantial and frivolous.’  In other words, a complaint purporting to allege a federal claim is one over which a district court has subject matter jurisdiction unless ‘the federal right claimed in a complaint is insubstantial, unsubstantiated, or frivolous.’  Given the door left ajar by Simonton for claims based on ‘failure to conform to sex stereotypes,’ the EEOC’s recent holding that Title VII prohibits discrimination on the basis of sexual orientation, and the lack of a Supreme Court ruling on whether Title VII applies to such claims, I cannot conclude, at least at this stage, that plaintiff’s Title VII claim is ‘wholly insubstantial and frivolous.’  While it may be that the Title VII claim will not survive the rigors of further testing, even to whatever extent it relates to sexual orientation on a theory of non-conformity to sexual stereotype, it nevertheless arises under the laws of the United States.”  The second point, of course, is that Koke also alleged discrimination because of gender in her complaint, and that claim clearly arises under Title VII.

Kaplan also rejected the suggestion that this was an appropriate case to decline jurisdiction over the state and local law claims, pointing out that all the claims arose out of the same nucleus of operative facts and that the anti-discrimination provisions of the federal, state and local laws substantially overlap, at least as to sex discrimination, keeping in mind the requirement to give a more liberal construction to the NY City Human Rights law than to the state or federal laws in light of a particular provision requiring that in the city ordinance.

This opinion by Judge Kaplan is quite interesting for anybody trying to track the potential impact of the EEOC’s ruling last summer. Since a majority of the states still do not ban sexual orientation discrimination expressly in their state anti-discrimination laws and Congress is unlikely to enact the pending Equality Act (which would add “sexual orientation and gender identity” to Title VII) within the foreseeable future, the availability of relief from such discrimination under Title VII could be quite valuable in those states in cases involving employers large enough to be subject to Title VII (at least 15 employees).  Furthermore, were federal courts to fall in line solidly behind the EEOC’s conclusion that sexual orientation is necessarily sex discrimination, this might lead to more expansive interpretation of state law bans on sex discrimination in the jurisdictions that don’t expressly include sexual orientation in their statutes.

Koke is represented by Erica Tracy Kagan, The Kurland Group, New York City. CUNY is represented by Steven Leon Banks of the State Attorney General’s Office.  Baumgardner and the Feminist Press are represented by Bertrand B. Pogrebin and Adam Jeremy Roth of Littler Mendelson PC, also of New York City.

Federal Court Upholds $100,000 Jury Award to Lesbian Plaintiff Against United Parcel Service (UPS)

Posted on: July 28th, 2015 by Art Leonard No Comments

Rejecting motions to set aside the jury verdict, order a new trial or reduce damages, U.S. District Judge Jack B. Weinstein upheld a federal jury’s award of $100,000 in damages to Tameeka Roberts, an employee at the United Parcel Service facility in Maspeth, Queens, who complained that the company had tolerated a hostile environment created by her supervisor and had retaliated against her when she pressed her complaint to the New York State Division of Human Rights.  Roberts v. United Parcel Service, 2015 WL 4509994 (E.D.N.Y., July 27, 2015).

According to Judge Weinstein’s opinion, Ms. Roberts lives with her wife and three sons in New Jersey.  She began working for UPS in 1995 and has had about twenty different supervisors over the past twenty years.  Her “problem” supervisor whose conduct led to this lawsuit was Donald Woodard, a “full-time area coordinator” who supervised Roberts in 2007 and 2008, and then again from 2010 through 2012, when an incident in which Ms. Roberts was seriously injured at work attributable to misconduct by Woodard led to his assignment to a different facility.

Roberts’ problems with Woodard began in 2007 after she complained to Woodard about a denigrating comment he made to her about another lesbian employee.  “The next day,” wrote Weinstein, “Woodard brought his Bible to work and ‘showed [Roberts] where [the Bible] says that being a lesbian is wrong.’  He told her ‘It goes against the Bible…. It’s a sin.'”  Woodard admitted making these comments in his trial testimony.  Roberts complained to her shop steward and the head of security, but apparently nothing happened in response to her complaint.  “During the rest of 2007,” wrote Weinstein, “Woodard repeatedly told plaintiff that ‘being a lesbian is wrong’ and that she was ‘going to hell.'”  Woodard made these comments in the hearing of other workers, and told a co-worker not to “hang out” with Roberts because “she’s not living right. She had demons.  She doesn’t know who she is.”  Roberts complained to Woodard, telling him “this is not church” and “making comments about me being a lesbian is wrong.”  Woodard’s comments continued similarly during 2008.  Roberts would try to avoid confrontation by walking away or telling him to “leave me alone.”

The problem ceased in 2009 when Woodard stopped working at the Maspeth facility, but he returned as Roberts’ supervisor in 2010 and his comments resumed along the same lines.  Woodard again complained to a union shop steward, but nothing changed.  Woodard told Roberts that “two women being married is not natural,” that “being a lesbian is wrong,” that she was “going to hell” and she needed to “change” her “life, the style, the way” she was living.  She repeatedly complained to the shop steward.  In 2011, Roberts testified, Woodard threatened to take a photo of her with a married male co-worker and send it to the co-worker’s wife, as if to suggest they were having an affair.  Roberts reported this to her night manager and her shop steward.  The manager told her “do not go to corporate” with this complaint, because “I will handle the situation.”  Woodard’s comments then stopped for a while, but in the late summer of 2012 he got started up again, and Roberts renewed her complaints to the shop stewards, who finally brought her to Human Resources, where, apparently, nothing happened.

What finally seemed to get the company’s attention was a call Roberts made on October 23, 2012, to the UPS Corporate Concerns hotline, anonymously.  She identified herself as gay and said she felt “intimidated” and “harassed” because Mr. Woodard engages in “religious rants at the job” and makes “derogatory comments about gays.”  A few days  later, Roberts met with the local HR representative, a manager, and her shop steward, and an investigation of Woodard was launched.  However, the HR representative just cautioned Woodard that “religion has no place in the workplace” but took no other action.  Woodard stopped making his comments to Roberts, but she felt the company should have done more, so she sent a letter to corporate headquarters in Atlanta, claiming she was being harassed by Woodard and felt threatened, harassed and stressed because of “this situation.”  She asked, “Why is Donald Woodard allowed to Harass, Gay Bash and verbal abuse [sic] his employees and still be employed at United Parcel Service?”

The letter led UPS to open a second investigation, this time by the UPS Human Resources Operations Manager for the District, Beverly Riddick.  She met with Roberts for half an hour and told her that UPS was taking her complaint “very seriously.”  Riddick met with Woodard, but, according to the trial testimony, although Riddick learned that Roberts’ factual allegations were apparently true, Riddick did not believe that Woodward’s comments violated the law or company policy but were merely “inappropriate.”  “Woodard was not told to desist,” wrote Weinstein.  Riddick also interviewed the shop steward and two of Roberts’ co-workers.  Although these interviews also confirmed Roberts’ allegations about Woodard’s conduct, Riddick concluded that Woodard’s statements did not constitute discrimination or harassment, and so she testified at trial.

When Roberts ask her shop steward about the status of the investigation, he told her that her complaints were “probably unfounded” as Woodward was still supervising her.  Shortly after this, Roberts got permission from her immediate supervisors to miss work for a day in order to appear in traffic court and this was noted on her time card. But when she returned the next day, her time card indicated she was absent without calling.  She became convinced that Woodard had altered the time card, although he denied doing so.  UPS terminated its second investigation.  Woodard was not given any written warning and was left in place supervising Roberts, but senior management decided he should be transferred eventually to another facility and would be required to review UPS policies and to complete “two written statements,” which are not described in the court’s opinion.

When she learned about the outcome of the investigation, Roberts filed a complaint with the New York State Division of Human Rights early in December 2012.  She informed her shop stewards and union delegate about filing the complaint.  Soon after, she suffered injuries when a number of packages feel and hit her face, shoulder, arm and hand.  “She looked up and saw Woodard above her,” wrote Judge Weinstein.  “He was attempting a UPS procedure called ‘breaking the jam,’ but he had not followed safety protocol, which required notifying everyone in the area and stopping the conveyor belt.”  Roberts ended up missing weeks of work while tending to her injuries.  She wrote again to the NYS Division of Human Rights, “stressing the adverse impact this and other incidents had on her health.”  Woodard received no discipline from UPS for violating work rules but was transferred to another facility in January 2013.  Roberts was unable to return to work until mid-February.

Her lawsuit relied on the N.Y.C. Human Rights Ordinance, which provides greater protection for employees than the state or federal employment discrimination laws as a result of an amendment passed in 2005 called the Local Civil Rights Restoration Act.  Responding to evidence that state and federal courts were not providing adequate protection against discrimination for employees, the City Council determined to make it clear that interpretation of the city ordinance should not be limited by those federal and state law interpretations.  “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil rights laws, including those laws with provisions comparably-worded to provision of this title, have been so construed,” says the 2005 amendment.  This amendment is crucial to the outcome of Roberts’ case, since it is possible that under state and federal precedents, UPS might have been entitled to have some or all of her charges dismissed. Most importantly, New York City precedents make it easier for an employee to prove a hostile environment claim and to challenge employer retaliation.

Judge Weinstein devoted a substantial part of his opinion to a detailed overview of the history of anti-gay discrimination in the United States, quoting extensively from briefs filed with the U.S. Supreme Court in the recent marriage equality case, Obergefell v. Hodges.  He also quoted at length from a decision issued by the federal Equal Employment Opportunity Commission, explaining why anti-gay discrimination violates the federal ban on sex discrimination.  It is not clear why the judge included this material in his opinion, since the case was brought under the  NYC Human Rights Ordinance, but he seemed to determine to provide substantial support for the conclusion that gay people have suffered substantial discrimination in the past that needs to be redressed under civil rights laws.

The jury concluded that Roberts proved she was subjected to a hostile environment because she is a lesbian, and that she suffered retaliation after she complained both internally and to the civil rights agency.  The jury determined to award her compensatory damages of $25,000 for each claim and punitive damages of $25,000 for each claim, totaling $100,000, as well as awarding her the costs of her litigation.  UPS had filed pretrial motions seeking to get the case dismissed, and renewed its motions post-trial, arguing that Roberts had failed to prove a violation of the law and was not entitled to the damages.  Weinstein rejected these contentions out of hand.

Weinstein quoted the “guiding principles” that the U.S. Court of Appeals for the 2nd Circuit (based in Manhattan) had summarized for analyzing claims of discrimination and retaliation under the NYC Human Rights Law and then used those principles explicitly to refute every argument UPS made.

“Defendant argues that plaintiff fails to make a prima facie case of hostile work environment because she presents only ‘petty slights and trivial inconveniences,'” he wrote.  “To the contrary, Woodard’s continuing discriminatory comments about plaintiff’s sexual orientation, made over a number of years, show adverse differential treatment.  So too do the significant failures of supervisors to protect plaintiff against discrimination.  There was sufficient evidence for a jury to conclude that a reasonable person — who repeatedly was the target of such comments as plaintiff and repeatedly complained but found no recourse — would consider the comments more than a trivial inconvenience.”  Weinstein had noted that because of the more protective interpretation required for claims under the City’s ordinance, this case, which might not have sufficed for a hostile environment claim under Title VII of the Civil Rights Act, clearly qualified.

As to the retaliation claim, Weinstein wrote, “Retaliation may be subtle and hidden and can be hard to prove.  Juries are therefore given more leeway in finding retaliation than in finding discrimination. The jury had ample grounds to find retaliation likely to deter a worker from complaining of abuse.  Woodard and the defendant’s deliberate adverse conduct – the jury could have found – would likely deter a person from engaging in plaintiff’s protected activity (identifying as a lesbian).  First, not only did Woodard harass plaintiff over a course of approximately six years, but he harassed her after she complained repeatedly, to her supervisors and to him, of his ongoing adverse conduct.  Second, the jury could find that shortly after the second investigation, plaintiff’s time card was changed by Woodard as a punishment for protesting.  Third, the jury could find plaintiff was hit with packages by Woodard in retaliation. Fourth, it could find that defendant’s decision to allow Woodard to supervisor plaintiff after her repeated complaints demonstrated so much disdain by management as to itself constitute retaliation.  Fifth, Riddick’s investigation yielded no tangible results, despite substantial evidence of harassment; this know-nothing attitude was itself a form of retaliation by an implied expression of contempt for plaintiff’s complaints.”

In short, Weinstein really threw the book at UPS!

He was equally dismissive of UPS’s claim that the damages awarded by the jury were excessive.  $25,000 per claim for compensatory damages and $25,000 per claim for punitive damages struck Weinstein as “modest” and “well within an acceptable reasonable range.”  As to the punitive damages, UPS had the gall to argue that Roberts had not shown that the company acted with “malice” or “reckless indifference.”  “To the contrary,” wrote Weinstein, “plaintiff demonstrated sufficiently for a jury finding that defendant acted with reckless indifference to her multiple complaints of sexual orientation discrimination over many years.  UPS was anything but prompt.  By 2012, when Riddick, a high-level manager for defendant, conducted an investigation, she determined, contrary to overwhelming evidence of discrimination, that no discrimination had occurred.  She did not discipline Woodard in any meaningful fashion and allowed him to continue supervising plaintiff for a short period.”

Finally, Weinstein concluded, “Even if plaintiff failed to demonstrate that defendant retaliated because of her complaints by altering her time card and by failing to provide a safe working environment for plaintiff, there was sufficient proof of retaliation in central administration’s cavalier attitude towards plaintiff’s serious charges of harassment.”  Thus, she was entitled to punitive damages “as a matter of law” and “the modest award of each claim was appropriate in light of the evidence before the jury.”  Weinstein rejected the motion to set aside the verdict, the motion for a new trial, and the motion to reduce damages.

UPS could attempt to appeal this to the 2nd Circuit, but Judge Weinstein was careful to emphasize the 2nd Circuit’s own guidelines for evaluating such claims and to provide extensive sections of the trial testimony to show that the jury had a strong evidentiary basis for its verdict.  Also, his characterization of the damages as “modest” seems correct, in light of larger damage awards he noted in other cases.  This looks like a verdict that is likely to withstand appeal.

Tameeka Roberts is represented by Alex Umansky, Jessenia Maldonado, Phillips & Associates, PLLC, and Casimir Joseph Wolnowski, New York attorneys.  UPS retained suburban counsel from New Jersey.  Perhaps they were not too concerned about this case, but Weinstein’s strongly worded opinion is calculated to wake them up!  Perhaps some heads need to roll in the UPS Human Resources Department after a judge determines that they have a “cavalier attitude” about unlawful discrimination.

$1.6 Million Damage Award Upheld in New York City Human Rights Religion/Sexual Orientation Case

Posted on: March 20th, 2014 by Art Leonard No Comments

The N.Y. Appellate Division, 1st Department, in Manhattan upheld an award of $1.6 million damages on a jury verdict rendered under the New York City Human Rights Law to Mirella Salemi, on her discrimination claim against Gloria’s Tribeca, Inc. and its owner, Edward Globokar. Salemi v. Gloria’s Tribeca Inc., 2014 WL 1057328, 2015 N.Y. Slip Op. 01838 (March 20, 2014).

Salemi, identified in various media sources but not in the court’s opinion as a lesbian, worked as a chef in the defendant’s restaurant. She charged the employer with discrimination based on religion and sexual orientation. She presented evidence at trial that the employer held weekly prayer meetings at the restaurant that were viewed as mandatory for staff, and that the employer repeatedly stated that homosexuality is “a sin” and that “gay people” were “going to hell.” She alleged that she was generally subjected to “an incessant barrage of offensive anti-homosexual invective,” according to the court’s per curiam opinion.

Wrote the court, “Additional evidence demonstrated that as a result of Globokar’s improper conduct, plaintiff was retaliated against for objecting to his offensive comments, choosing not to attend workplace prayer meetings, and refusing to fire another employee because of his sexual orientation, and was constructively discharged.”

The court rejected the defendant’s argument that the trial judge, Justice Carol E. Huff, should have instructed the jury to use the “severe and pervasive” standard that is used for hostile environment cases under Title VII, and also rejected an argument that the trial judge should have charged the jury on a portion of the Human Rights Law forbidding religious discrimination, finding that the purpose of this section was to protect “victims of employment discrimination, not perpetrators of discrimination.” The trial court had instructed the jury that Globokar had “a right to express his religious beliefs and practice his religion, provided that he does not discriminate against his employees based on religion or sexual orientation.”

The court found the amount of damages to be within the range of what has been awarded in similar cases and that the punitive damage portion of the award — $1.2 million – was not excessive. The balance of the award, $400,000, was compensatory damages for the constructive discharge and accompanying emotional distress.

Salemi is represented by Derek T. Smith Law Group, William G. Kaupp of counsel. The Appellate Division justices on the panel included Justices Acosta, Renwick, Moskowitz, Freedman and Feinman.

This case brings to light the employment practices of a New York City restaurant that would probably shock many of its patrons, who might want to take this information into account in deciding where they want to take their business.

Federal Court Refuses to Dismiss HIV-Related Housing Discrimination Claim Against LeFrak Realty Organization

Posted on: December 17th, 2013 by Art Leonard No Comments

U.S. District Judge Denise Cote has refused to dismiss a discrimination case brought by a person living with HIV, identified in court papers as L.C., and the Fair Housing Justice Center against a major New York City realtor, Lefrak Organization and its subsidiary, Estates NY Real Estate Services, Inc.  Judge Cote’s December 13 ruling found that that plaintiffs had successfully alleged facts supporting a claim that LeFrak’s rental practices at its LeFrak City apartments in Queens discriminate against people living with HIV who are clients of New York City’s HIV/AIDS Services Administration (HASA), a division of the City’s Human Resources Agency.  L.C. v. LeFrak Organizations, Inc., 2013 U.S. Dist. LEXIS 175756.

According to the complaint, L.C. was notified by HASA that she would be entitled to economic support to rent an apartment up to a monthly rent of $1,100.  Under HASA’s policies, L.C. was supposed to locate and apply to rent a suitable apartment and, upon approval by HASA, the agency would issue a check to the landlord for the first month’s rent and a voucher to cover an equal amount as a security deposit, and HASA would subsequently issue monthly checks to the landlord to cover the rent.  HASA also covers any necessary broker fees.

Thus notified by HASA, L.C. went to the LeFrak City website, determined that apartments were available there within the specified price range, and called the rental office.  When she identified herself as a HASA client, she was referred to “an office on Queens Boulevard that deals with applicants who will be using government benefits programs to pay their rent,” according to Judge Cote’s opinion.  There, L.C. encountered the Catch-22 in this situation.  LeFrak’s agents would not show L.C. an apartment until she provided a letter from HASA confirming that they would pay a specific amount for the rent, but HASA does not issue such letters before a client has actually been approved to rent a particular apartment.  L.C. explained to the LeFrak agent that she needed to apply for the particular apartment and have it approved by HASA before HASA would issue a letter, but the LeFrak people said they would not process L.C.’s application until they had a letter from HASA.

L.C. then met with her HASA case manager, who confirmed with her supervisor that HASA does not issue such letters.  L.C. then visited Housing Works, and a Housing Works manager called LeFrak.  The LeFrak representative confirmed at that time that they had apartments available for around $1,100 a month, but that a letter from HASA had to be submitted before they would process L.C.’s application.

The other plaintiff in the case, Fair Housing Justice Center, sent “testers” to LeFrak to confirm what their policies are.  LeFrak was then listing three apartments at LeFrak City within the $1,100 price range.  One tester told the LeFrak staff that she was employed, earning $46,000 a year, and looking for a studio or one-bedroom in LeFrak City in that price range.  She was promptly shown a floor plan and given an application to complete, and no request for documentation of her income was made at that time.  Two other testers told the LeFrak people that they were inquiring for a brother who was living with AIDS and would be receiving a housing subsidy from HASA, and in both cases they were referred to the special office for renters using government program subsidies.  They confronted the same response as L.C..  They could not submit an application or see an apartment until they submitted the requested “papers” including a HASA commitment letter.  They were also required to wait for LeFrak to do a criminal and credit background check.   (This had not been requested of the tester who said she was employed.)  The testers also noted that the office to which they were referred had a glass window separating the applicants from the LeFrak staff, unlike the regular rental office.

L.C. and FHJC filed their federal discrimination lawsuit on April 25, 2013, asserting claims under the federal Fair Housing Act (FHA), which forbids housing discrimination against people with disabilities, and the New York City Human Rights Law, which forbids discrimination not only against people with disabilities but also discrimination based on a potential renter’s source of income.  The complaint claimed both intentional discrimination (disparate treatment) and maintenance of procedures that had a disproportionate adverse effect on people with disabilities (disparate impact).

LeFrak moved to dismiss the case, claiming that it did not intentionally discriminate against people with HIV.  LeFrak argued that the FHA claims had to be dismissed because they failed to allege that LeFrak had discriminated because of HIV status.  They asserted that the story told in the complaint was one of treating people differently depending upon their source of income to pay rent, and that this did not violate the FHA.  Rejecting this argument, Judge Cote wrote that the complaint “alleges that LeFrak understood that HASA clients, alone of all persons requiring government housing subsidies, would be unable to produce a source-of-income letter at the application stage of the rental process.  This is sufficient to give the defendants fair notice of the plaintiffs’ theory that LeFrak intentionally discriminated against L.C.”

Judge Cote also found that plaintiffs could maintain an action under another provision of the FHA which refers not only to the actual rental of housing but also to the “terms, conditions or privileges” attached to housing.  For example, refusing to let L.C. see an available apartment or floor plan can itself be the basis of a discrimination claim, so the case is not solely based on a denial of a rental application.

Judge Cote found that the complaint could also qualify under the disparate impact theory, by showing that LeFrak maintained procedures that made it particularly difficult for HASA clients to rent apartments, thus having a “disparate impact” against persons with HIV.   LeFrak objected that the plaintiffs failed to provide statistics showing the disparate impact, but Judge Cote found that they had alleged that out of 8 million New Yorkers, 67,000 are living with HIV and almost half of them are HASA clients, the “vast majority” of whom are using the HASA housing subsidy program.  “This adequately puts the defendants on notice that plaintiffs’ alleged basis for disparate impact is that the percentage of the HIV population in New York City on housing subsidies exceeds the percentage of non-HIV New York City population on housing subsidies.”

LeFrak argued that L.C. should be challenging HASA’s refusal to provide the necessary commitment letters, rather than LeFrak’s refusal to process rental applications without receiving such letters.  Judge Cote rejected this argument as well, pointing out that LeFrak had not argued that HASA was a “necessary party” to this case, so this argument did not entitled LeFrak to get the claims against itself dismissed.

The judge’s analysis of the New York City Human Rights Law claims was straightforward.  Since the city law outlaws the same kind of housing discrimination based on disability that is outlawed by the FHA, the same factual allegations supported the city law discrimination claim.  That the city law also forbids housing discrimination based on source-of-income, a relatively recent addition to the law, makes the city law claim even stronger in this case, especially since LeFrak argued in opposition to the federal claim that its policies discriminated based on source-of-income, not disability.  In fact, LeFrak’s argument sounds like a concession that its policy violates the city law.

LeFrak argued that its policy of requiring rental applicants to provide income documentation before renting an apartment was “legitimate and applied to all applicants.”  Cote pointed out that the plaintiffs were not denying that, but rather were challenging LeFrak’s refusal to show apartments or accept rental applications before documentation of income was presented, because this policy “served as an impediment that prevented L.C. from ‘securing’ an apartment.”  Judge Cote observed that the complaint makes the claim that LeFrak’s differential approach on documentation between applicants of means and applicants who are relying on government programs establishes “a prima facie case of disparate treatment based on source of income,” a direct violation of the city law.  Judge Cote also found that the plaintiffs had alleged necessary facts to put their city law case in play, by showing that if LeFrak had processed L.C.’s application and conditionally approved her as a tenant, HASA would have provided the documentation necessary to complete the rental process.

Finally, Cote rejected LeFrak’s argument that because the city law applies to discrimination in rentals but doesn’t mention any right for a member of the public to “inspect” an apartment before applying for it, LeFrak could not be held liable for a violation merely because it refused to allow inspections of vacant apartments by public housing subsidy applicants who had not yet presented written confirmation of their housing benefits.  Cote pointed out that the city law has a provision mandating “liberal construction,” and found that any obstruction put in the way of a potential client could come within the ambit of the anti-discrimination law.

Attorneys Armen Merjian from Housing Works and Diane Lee Houk from the law firm Emery Celli Brinckerhoff and Abady represent the plaintiffs L.C. and FHJC.   LeFrak is represented by Randy Mastro and other attorneys from Gibson, Dunn & Crutcher.