New York Law School

Art Leonard Observations

Posts Tagged ‘New York Human Rights Law’

Obscure Brooklyn Appellate Ruling Protects Transgender People from Discrimination Without Saying So

Posted on: June 14th, 2018 by Art Leonard No Comments

Talk about “hiding the ball!” On June 6, a unanimous four-judge panel of the New York Appellate Division, 2nd Department, based in Brooklyn, confirmed an Order by the State Division of Human Rights (SDHR), which had adopted a decision by an agency administrative law judge (ALJ) ruling that a Port Jervis employer violated the human rights law when it discharged a transgender employee.

But nobody reading the court’s short memorandum opinion, or the short agency opinion and order, would have any idea that the case involved a gender identity discrimination claim. Surprisingly, given the novelty of the legal issues involved, only the administrative law judge’s opinion, an internal agency document, communicates what the case is actually about.

The case is Matter of Advanced Recovery, Inc. v. Fuller, 2018 N.Y. Slip Op 03974, 2018 N.Y. App. Div. LEXIS 3969, 2018 WL 2709861 (N.Y. App. Div., 2nd Dept., June 6, 2018).

Erin Fuller, a transgender woman, was fired by Mark Rea, the owner and chief executive of Advanced Recovery, Inc., the day Fuller presented a supervisor with a copy of a court order authorizing her change of name from Edward to Erin and the supervisor passed the document to Rea. Rea called Fuller into his office and, according to Fuller, said in the presence of the supervisor, “Now I have a problem with your condition.  I have to let you go.”

Rea and other company officials had been aware for some time that Fuller was transitioning, since she had presented them with a letter from her doctor in 2009 explaining her gender dysphoria diagnosis and how she would be transitioning, and on at least one occasion Rea had reacted adversely to Fuller’s mode of dress, but it wasn’t until he was presented with the legal name change that Rea apparently decided that he had enough and no longer wanted Fuller, a good worker who had been with the company more than two years.

When Fuller went back later to pick up her final paycheck, a supervisor told her that “he felt bad, but your job would be waiting for you as long as you came in wearing normal clothes.”

Attempting to escape possible liability, Rea and the company’s lawyer later came up with a termination letter that cited other reasons for terminating Fuller and said nothing about her name change, mode of dress, or gender identity, but they never sent her that letter, which first surfaced when it was offered as evidence at the SDHR law judge’s hearing on Fuller’s discrimination claim.

The discharge took place on August 4, 2010, several years before Governor Andrew Cuomo directed the SDHR to adopt a policy under which gender identity discrimination claims would be deemed to come within the coverage of the state’s ban on sex discrimination.

Fuller filed her complaint with SDHR on October 13, 2010. On the complaint form, she checked the boxes for “sex” and “disability” as the unlawful grounds for her termination.  After the company was notified of the complaint, it apparently prompted local police to arrest Fuller for altering a medical prescription, a spurious charge based on her changing the pronouns on the note written by a doctor on a prescription form after she missed a few days of work due to hospital treatment.  At the time, she didn’t think of amending her discrimination charge to allege retaliation, unfortunately, waiting until the hearing to raise the issue, by which time the judge had to reject her motion because she waited too long to assert the retaliation claim.

The agency concluded, after investigation, that it had jurisdiction over the discharge claim and set the case for a public hearing before an ALJ. At the hearing, Fuller was represented by attorneys Stephen Bergstein and Helen Ullrich, who persuaded the judge that Fuller had a valid claim and that the reasons given by the employer for firing her were pretexts for discrimination.  The same lawyers represented Fuller when the company appealed the judge’s ruling to the Appellate Division.

Relying on a scattering of trial court decisions holding that transgender people are protected from discrimination under the New York Human Rights Law, ALJ Robert M. Vespoli concluded that Fuller “states a claim pursuant to New York State’s Human Rights Law on the ground that the word ‘sex’ in the statute covers transsexuals.”

“Complainant also has a disability,” wrote Vespoli, “as that term is defined in the Human Rights Law.” The New York Human Rights Law’s definition of “disability” is broader and more general than the federal definition in the Americans with Disabilities Act, and New  York law does not have the explicit exclusion of coverage for people with “gender identity disorders” that is in the federal law.  Under New York’s law, a disability is “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”  The statute provides that a disability may also be a “record of such impairment or the perception of such impairment.”

“During the relevant time period,” wrote Vespoli, “Complainant was diagnosed with gender dysphoria. This condition falls within the broad definition of disability recognized under the Human Rights Law,” citing a 2011 decision by the agency to recognize its jurisdiction in a transgender discrimination case. The employer could not claim ignorance about Fuller’s transition, because in 2009 she had presented the company with her doctor’s letter explaining the situation, after which she began to dress and groom differently.

In his opinion dated February 20, 2015, Judge Vespoli rejected the employer’s evidence of other reasons for the discharge, finding that the proffered letter was a document created after the discharge for the purpose of litigation, that it had never been delivered to Fuller, and that the reasons it offered were pretexts for discrimination. The judge recommended awarding Fuller $14,560.00 in back pay and $30,000.00 for mental anguish caused by the discrimination.  He also recommended imposing a civil penalty on the company of $20,000.00.

The company filed objections to Vespoli’s recommendations with the Commission, but did not specifically object to Vespoli’s finding that Fuller had a disability or that the agency had jurisdiction over this case on grounds of sex and disability. The Commission’s Notice and Final Order of April 1, 2015, overruling without discussing the company’s evidentiary objections and adopting the judge’s recommendations and findings, said nothing about the details of the case, beyond noting that Fuller had complained of discrimination because of sex and disability.

The company’s appeal to the court again did not explicitly contest the ruling that the statute covers the case, instead urging the court to find that the ruling was not supported by substantial evidence of discrimination. Perhaps because the company’s appeal did not raise the question whether the Human Rights Law bans discrimination because of gender identity, the Appellate Division’s ruling also  did not  mention that the complainant is a transgender woman, and did not discuss the question whether this kind of case is covered under the disability provision.  Rather, the court’s opinion recites that the complainant alleged “that the petitioners discriminated against her on the basis of sex and disability,” and that the agency had ruled in her favor.  “Here there is substantial evidence in the record to support the SDHR’s determination that the complainant established a prima facie case of discrimination, and that the petitioners’ proffered reasons for terminating the complainant’s employment were a pretext for unlawful discrimination.  The petitioner’s remaining contentions are either not properly before this Court or without merit.”

Of course, Fuller’s brief in response to the appeal would have mentioned this issue, and SDHR, which cross-petitioned for enforcement of its Order, mentioned the issue as well.

The court wrote that there is “substantial evidence in the record” to support the agency’s ruling, so the court presumably looked at the record, including the ALJ’s opinion, and was aware that this was a gender identity discrimination claim.  The appellate panel surely knew that this was an important issue in the case.

Cursory research in published New York court opinions would show that there is no prior appellate ruling in New York finding that a gender identity claim can be asserted under the Human Rights Law’s prohibited grounds of “sex” and “disability.” The court took its time on this case, waiting until June 6, 2018, to issue a ruling upholding an administrative decision that was issued on April 1, 2015.  Despite taking all this time, the court produced an opinion that never mentions these details, that provides no discussion of the ALJ’s analysis of the jurisdictional issue, and that does not expressly state agreement with the trial court ruling that Judge Vespoli specifically cited in support of his conclusions.

This may be the first case in which a New York appellate court has affirmed a ruling holding that an employer violated the state’s Human Rights Law by discriminating against an employee because of her gender identity, but you wouldn’t know it by reading the court’s opinion. While the court’s failure to mention the doctrinal significance of its ruling may be explainable because the employer did not raise the issue on its appeal, it’s omission nonetheless renders the decision basically useless as an appellate precedent.

One can fairly criticize the court for failing to play its proper role in a system of judicial precedent to produce a decision that can be referred to by later courts. The judges whose names appear on this uninformative opinion are Justices Mark C. Dillon, Ruth C. Balkin, Robert J. Miller, and Hector D. LaSalle.

Governor Cuomo’s directive, issued while this case was pending before the Appellate Division, actually reinforced existing practice at the State Division of Human Rights, as the earlier opinions cited in Judge Vespoli’s opinion show, but in the absence of an explicit appellate ruling, enactment of the Gender Identity Non-Discrimination Act remains an important goal and its recent defeat in a Senate committee after renewed passage by the Assembly is more than merely a symbolic setback for the community.

A legal team of Caroline J. Downey, Toni Ann Hollifield and Michael K. Swirsky represented SDHR before the Appellate Division, which had cross-petitioned for enforcement of its decision. Port Jervis lawyer James J. Herkenham represented the company, and Stephen Bergstein of Bergstein & Ullrich presented Fuller’s response to the appeal.







Sears Roebuck Loses Summary Judgment Motion in Sexual Orientation Hostile Environment Case

Posted on: July 10th, 2013 by Art Leonard No Comments

N.Y. Supreme Court Justice Debra James has rejected a motion for summary judgment by Sears Roebuck on a claim that a gay former employee at Sears’ Auto Center in Nanuet, N.Y., was subjected to a hostile working environment in violation of New York State’s Human Rights Law, which forbids employment discrimination based on sexual orientation.  However, Justice James’ June 28 decision granted Sears’ motion to reject Joseph DeVito’s retaliation claim stemming from a promotion he claims he was denied for complaining about the harassment.  The unpublished decision is reported by Lexis, 2013 N.Y. Misc. LEXIS 2784 (N.Y. County).

DeVito was hired as a Customer Service Advisor in October 2006.  He claims that “he was routinely exposed to anti-gay comments and ridicule in the workplace, including but not limited to co-workers regularly use of the word ‘faggot’ despite his frequent objections.”  He claimed that at least twelve co-workers regularly made “offense comments about homosexuals or homosexuality in his presence during his workday,” and that his repeated complaints to his immediate supervisor did nothing to ameliorate the situation.  He complained by email to his supervisor, and just days later a co-worker “made a crude homophobic comment about ‘blow jobs’ and ‘hand jobs.'”  He also recounted that a co-worker “made fun of a customer whose car displayed a rainbow sticker, commenting that he did not ‘want to touch that faggot’s car.'”  Although DeVito’s supervisor said he would send DeVito’s complaint to higher management, nothing happened.

Finally fed up after waiting for months for things to improve, DeVito sent a new email to the District Manager, who happened to be an openly gay man.  This individual promptly asked the Auto Center Manager to speak with DeVito to make clear that such conduct “is not tolerated at any level.'”  He also contacted the Human Resources manager to investigate DeVito’s complaints, and ordered implementation of a training program on workplace harassment for the staff.  But these efforts, however well intended, were not particularly effective, according to DeVito, who alleged that the hostile working environment continued, that the investigation did not solve the problem, and that after the training meeting was held, “his co-workers commented that they ‘didn’t understand … the point of the meeting’ and for a week ‘made fun about how dumb the meeting was.'”

Ultimately DeVito left Sears after finishing up his college degree to seek better employment, but he was determined to hold the company accountable for what happened to him, pursuing his legal claims.  Two of his claims, for violation of the NY City Human Rights Law and a breach of the covenant of good faith and fair dealing, were dismissed by the court with the consent of the parties.  DeVito’s employment in Nanuet was not subject to the City law, and New York does not recognize an action for breach of such an implied covenant in an at-will employment relationship.  In addition to claiming that he had been made to suffer an unlawful hostile working environment, DeVito alleged that he was passed over for a promotion in retaliation for having made his internal discrimination complaints. 

Justice James rejected DeVito’s retaliation claim, finding that he actually had not applied for the promotion he specified in that claim, but she found that his factual allegations concerning hostile environment were sufficient to ground a legal claim. 

In support of its motion for summary judgment, Sears alleged that the co-workers were unaware that DeVito was gay and that the company had taken reasonable steps to respond to his complaints. 

As to the issue of employees’ awareness of DeVito’s sexual orientation, James wrote, “This court disagrees with Sears and finds that DeVito has raised an issue of fact objectively that he suffered a work environment hostile to homosexuals, given his contemporaneous complaints from the inception of his employment about a work atmosphere generally hostile to homosexuls as well as about continual and recurring hostility toward homosexuals regularly and specifically directed at him.  Looking at the totality of the circumstances and giving the non-movant every favorable inference, this court finds that DeVito describes a workplace that was permeated with discriminatory intimidation, ridicule and insult, causing his employment to be altered for the worse.”

Furthermore, she pointed out, Sears’ argument “merely raises an issue with respect to the knowledge and intent of Sears’ employees.  Both states of mind implicate questions of credibility that must be resolved by the fact finder at trial.”

Sears also argued that there was no evidence that it had “acquiesced in, condoned, or approved homophobic behavior on the part of its employees,” but the court found that DeVito’s allegation “raised an issue of fact with respect to whether the hostile statements and conduct of his co-workers should be imputed to Sears.”  For one thing, he alleged that one of his harassers was his direct supervisor, and harassment by a supervisor subjects the employer to vicarious liability.  For another, DeVito’s complaints were not met by prompt responses or improvements in the situation, despite Sears’ knowledge of what was going on based on those complaints, and “DeVito has raised an issue of fact whether Sears’ corrective actions were reasonable as a matter of law, which must be adjudicated by a fact finder at trial.”

Consequently, resolution of the hostile environment claim through a pre-trial motion was inappropriate, because such resolution would depend on credibility determinations to resolve contested fact issues.  Justice James set a pretrial conference date of August 27 in case the parties are unable to settle the case, for the purpose of setting a trial date. 

DeVito’s lawsuit parallels a similar lawsuit by another former Sears employee, Robert Cole, who was originally a co-plaintiff with DeVito, but whose case was severed “since Cole’s and DeVito’s title/positions and periods of employment at Sears differed (i.e. DeVito continued as an employee of Sears, after Cole was terminated) and neither played any role in any adverse employment decision suffered by the other.”  Part of the hostile environment alleged by Sears involved co-worker comments suggesting some sexual relationship between DeVito and Cole, including crude sexually explicit restroom graffiti which allegedly remained on the wall for some time after DeVito complained to supervison about it.  Another part of the alleged hostile environment included homophobic comments about the openly gay District Manager.  If DeVito’s allegation are, in fact, true, it sounds like the Sears Auto Center in Nanuet during the years in question was a hotbed of homophobic vituperation among the employees that included contempt for gay customers.