New York Law School

Art Leonard Observations

Posts Tagged ‘New York State Division of Human Rights’

Court Orders New York State to Pay Brooklyn Woman $125,000 for Using Her Photo in HIV Discrimination Ad Campaign

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

New York Court of Claims Judge Thomas H. Scuccimarra has decided that the State of New York should pay Avril Nolan $125,000 for using her photo in an HIV Discrimination Advertising Campaign without a disclaimer that the person in the picture was a “model.” The November 8 ruling came after the Appellate Division court in Brooklyn ruled last January that the use of the photo in print and on-line advertisements, in which the statement “I AM POSITIVE (+)” appeared next to the photo, was defamatory as a matter of law, and sent the case back to the Court of Claims for a determination of damages. Ms. Nolan is not HIV-positive.

The case is Nolan v. State of New York, 2018 N.Y. Misc. LEXIS 5887, 2018 N.Y. Slip Op 51789(U) (Ct. Claims, Nov. 8, 2018).

According to Judge Scuccimarra’s opinion, “Jena Cumbo, the photographer, had taken the photograph as part of a ‘street-style’ photography piece for Soma magazine, briefly profiling those photographed about their musical interests.” Cumbo did not have Nolan sign a release and, without asking her permission, sold the photograph to Getty Images, a company that compiles and sells stock photos for use in publications, advertisements, and so forth.

The State Division of Human Rights, which enforces the New York Human Rights Law’s ban on discrimination, was planning an advertising campaign to educate the public that it is illegal to discriminate against people because they are living with HIV. Instead of finding people living with HIV who might be willing to be photographed for such advertising, the DHR contacted Getty Images and bought the right to use Nolan’s photograph. Getty mistakenly represented to SDHR that Nolan had signed a general release for use of her photograph.

The Court of Claims hearing about damages to be awarded to Nolan focused on how she heard about the advertisement, her subsequent contacts with AM New York, which ran the ad, and the DHR, and the impact its publication had on her life.

Nolan, an Irish immigrant who was working for a public relations company in the fashion industry when the ad was published, learned about the ad on the morning of April 3, 2013, when she arrived at work and saw a notice an acquaintance had posted on her Facebook page, asking whether she had been in that morning’s issue of AM New York. She later received a private message from the same acquaintance with an image of the advertisement. She testified that when she saw the image she “was completely shocked” and “confused,” seeing the “words, ‘I am positive,’ beside my face, I was devastated.” She testified that she felt her “world was just falling down around her,” especially because AM New York was a “big target” for two of her clients, including an important new one.

She got a copy of the newspaper, and testified that she felt “sick to the bottom of my stomach.” She feared for her career in the intensely competitive atmosphere of the office where she was working. On advice of a friend, she told her bosses that morning, showing them the newspaper. She testified that she was “very, very emotional” and “couldn’t stop crying” as she spoke to them. Although her bosses expressed shock, she says that they “calmly went into crisis PR mode,” assessing how it could have happened and whether any clients could have seen it. They did not fire her, as she had feared.

She contacted the photographer, her mother (a psychologist, in Ireland), some friends, and an aunt who had been her mentor when she arrived in New York. Her aunt said she would find a lawyer to represent her.

The photographer contacted AM New York, Getty and the DHR, and put Nolan in touch with a DHR employee by email, who informed her, “After speaking with a Getty representative we have been told we are not liable. We are acting in good faith to remove the image based on the model’s request.” The DHR spokesperson asked Nolan to send them an email stating she would not hold DHR liable and said, “We need the email sooner rather than later as a number of publications are on deadline and are scheduled to move forward with the campaign with Ms. Nolan’s image.” Nolan responded, “Discussing this matter to get further advice but please remove my image from the advertisements. This has already caused enough problems and embarrassment.”

After her email to DHR, Nolan heard nothing further from the State to discuss the ad, but publication was quickly discontinued. Nolan testified to suffering considerable emotional distress, but over the next few months the constant thoughts about who might have seen the ad and how it might affect her subsided, although she claimed it took “a couple years” to rebuild her confidence. It was not until the discovery process for this lawsuit that she found out that the ad had been used in four print publications and three online publications, which triggered again her concerns about how many people might have seen it. Despite a few incidents, the issue generally did not come up or have any substantial effect on her work.

When she was asked during the hearing about what this “association with HIV” meant to her, she testified that while unfortunate, there is “so much stigma around it. . . It’s not like I was in an ad for cancer treatment” where sympathy would be elicited. “There’s a lot of negativity around it,” she testified, “and there’s a lot of associations that people jump to incorrectly about your lifestyle. People think you’re easy, or you’re promiscuous. There’s a lot of just questions around your sexual behavior and your sexual activity. It makes people really think about something so personal to you. It also brings up drug use and just all of these things that I did not want to be associated with and was very embarrassed to be associated with. This goes much deeper, and it really calls into question you as a person and your lifestyle.”

Wrote Judge Scuccimarra, “On cross-examination, claimant confirmed that she did not lose her job nor did she miss any time from work when the advertisement came out. She did not lose any friends. No one other than the acquaintance who first told her about the ad, her Pilates teacher and the outside producer [from an ad shoot] ever informed her that they recognized her as the person depicted in the ad. Indeed, when claimant conducted an online search that day she was unable to see a copy of the advertisement.”

The judge reviewed testimony by several witnesses about the psychological impact of the ad on Nolan, leading to the conclusion that she had been tense and nervous in the period following the publication, but the effects dissipated with time and eventually returned to normal.

As the Appellate Division had ruled back in January, for the purposes of defamation liability falsely labelling somebody as HIV positive fell into the “loathsome disease” category, in spite of changing public attitudes about HIV/AIDS, in which some injury is presumed and the plaintiff is entitled to damages without any requirement to show financial harm. However, the amount to award is up to the discretion of the court, taking into account all the circumstances, and courts will engage in comparisons with the amounts awarded in other cases, comparing the factual situations on some rough scale of fair compensation. Judge Scuccimarra wrote, “the court credits Ms. Nolan’s assessment of a culture of competition at her job, and in the public relations field generally, that left her particularly vulnerable as a young woman to the extreme anxiety and distress she suffered upon publication of the defamatory material. The court also credits the increased anxiety she experienced when imagining how many people could potentially see the ad and make judgments about her that she feared. By all accounts, Ms. Nolan was sensitive, but had learned to hide her feelings somewhat in her two years in the competitive world of New York fashion public relations. This event credibly triggered a setback for her in her confidence and outward demeanor, but she appears to have come out of the experience. She did not lose friends or beaux, and ultimately moved on from her job and succeeded in a new venture.”

The judge decided that based on the “humiliation, mental suffering, anxiety and loss of confidence suffered by this young woman at the beginning of her career, and at the beginning of her growing independence, the vast extent to which the defamatory material was circulated – albeit for the laudatory purpose of getting public service information out to as many people as possible – and all the circumstances herein,” a reasonable compensation would be $125,000, with appropriate interest from the date of the determination of liability on June 18, 2015, which was the date when Judge Scuccamarra had first ruled in her favor prior to the state’s appeal, as well as a refund to her of the fees for filing her lawsuit in the Court of Claims.

Nolan was represented by attorney Erin E. Lloyd of the firm Lloyd Patel LLP. Assistant Attorney General Cheryl M. Rameau of the Attorney General’s Office represented the State of New York.

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.

 

 

 

 

 

 

N.Y. Appellate Division Finds Wedding Venue Unlawfully Excluded Same-Sex Couple

Posted on: January 15th, 2016 by Art Leonard No Comments

A unanimous five-judge bench of the New York Appellate Division, 3rd Department, an intermediate appellate court that hears appeals from state agency rulings in Albany, upheld a decision by the State Division of Human Rights (SDHR) that Liberty Ridge Farm LLC, an upstate business corporation that rents facilities for wedding ceremonies and other life-cycle events, violated the state’s Human Rights Law (HLR) in 2012 when the business turned away a lesbian couple looking for a place to hold their wedding ceremony and reception.  The court’s January 14 opinion was written by Justice Karen K. Peters.  Gifford v. McCarthy, 2016 N.Y. App. Div. LEXIS 238, 2016 WL 155543.

In June 2011 New York enacted its Marriage Equality Law, which went into effect the next month, providing that same-sex couples could marry and that their marriages would be treated the same under all provisions of New York law as different-sex marriages.  In October of 2011, Melisa McCarthy and Jennifer McCarthy became engaged, intending to marry during 2012.  In the fall of 2012, Melisa phoned Cynthia Gifford, co-owner of Liberty Ridge Farm, to ask about holding the wedding there.

Ms. Gifford and her husband Robert co-own the farm in Rensselaer County.  It is a working farm, but parts of the premises are regularly rented to the public for use as a wedding venue.  According to Justice Peters’ opinion, “When providing a venue site, Liberty Ridge offers several wedding-related services, including transportation of guests within the premises, a light beverage station, decoration and set-up services, flower arrangements and event coordination,” and Ms. Gifford serves as the “event coordinator.”  Liberty Ridge also contracts with a caterer to provide food and beverages for wedding receptions and “employs catering, kitchen and wait staff for that purpose.”

When Gifford figured out from Melisa’s use of a female pronoun to refer to her fiancé that she was engaged to a woman, she immediately said that there was a “problem” because the farm did “not hold same-sex marriages.”  When Melisa asked why not, Gifford responded that “it’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.”  The McCarthys followed up by filing a discrimination complaint with the State Division of Human Rights against the Giffords and their corporation, and found a different venue for their wedding.

The HRL provides that places of public accommodation may not discriminate in their provision of services because of the sexual orientation of those seeking the services.   The Giffords responded to the charge of sexual orientation discrimination that they did not believe their operation was a “public accommodation” subject to the law and that they were not discriminating based on sexual orientation, but rather exercising their 1st Amendment rights of freedom of speech, association and religious exercise. They did not inquire into the sexual orientation of potential customers, they insisted.

A public hearing before an Administrative Law Judge (ALJ) led to a decision that Liberty Ridge Farm LLC was a place of public accommodation and that the denial of the facility to a same-sex couple for use as a wedding venue violated the statute.  Constitutional questions were necessarily reserved to the subsequent court proceeding.  The ALJ recommended that each of the McCarthys receive $1,500 to compensate for the emotional distress they suffered as a result of being discriminated against, and that the Giffords have to pay a fine to the agency of $10,000.  The ALJ also recommended that the petitioners be directed to “cease and desist” from violating the statute, and establish anti-discrimination training and procedures at their business. The Commissioner of Human Rights accepted the ALJ’s findings and recommendations with minor changes, and the Giffords filed their appeal to the Appellate Division, raising both statutory and constitutional challenges to the decision.

This case presented questions of first impression for New York, but the issues are not new for anyone who has been paying attention to similar cases that have arisen in other states.  To date, appellate rulings in New Mexico, Oregon, Colorado and Washington state have all rejected the idea that businesses can deny their services or goods to same-sex couples in connection with commitment or wedding ceremonies when state or local laws forbid sexual orientation discrimination by businesses.  Justice Peters cited those cases – most prominently the Elane Photography case from New Mexico, which was denied review by the U.S. Supreme Court on the constitutional questions – in reaching a ruling consistent with the decisions from other states.

Turning first to the statutory claims, the court easily dispensed with the Giffords’ argument that their farm is not a “public accommodation” under the statute.  They are incorporated as a for-profit business and they advertise the availability of their facilities to members of the public, so their argument that they are just a privately-owned farm that rents out its barn occasionally for a wedding ceremony was not going to cut it under the broad interpretation of the statute that the state courts have followed.  “The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law,” wrote Justice Peters; “the critical factor is that the facilities are made available to the public at large.”

As to the argument that they were not discriminating based on sexual orientation, the court was equally dismissive.  “As the record clearly reflects,” wrote Justice Peters, “Cynthia Gifford displayed no unwillingness to allow the McCarthys to marry at the farm until Melisa McCarthy referred to her fiancé as a ‘she.’  Despite Cynthia Gifford’s clear rejection of the McCarthys as customers, petitioners nonetheless argue that, in advising Melisa McCarthy that ‘we do not hold same-sex marriages here at the farm,’ they did not deny services to the McCarthys ‘because of’ their sexual orientation.  Instead, petitioners claim that the decision to do so was based solely upon the Giffords’ religious beliefs regarding same-sex marriage.  Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected.”  Justice Peters cited the U.S. Supreme Court’s decision involving the refusal of University of California Hastings Law School to recognize a chapter of the Christian Legal Society, which excluded gay students from membership, in which Justice Ruth Bader Ginsburg expressly rejected this kind of status/conduct distinction, as well as the famous Bob Jones University case, which upheld a denial of tax exempt status to the school because of its policy forbidding interracial dating by students.

The court found that the “act of entering into a same-sex marriage is ‘conduct that is inextricably tied to sexual orientation,’” so there was no basis to distinguish this from on outright denial of services because of a potential customer’s sexual orientation.  The Giffords had tried to bolster this defense by claiming that they would have been happy to host a wedding reception for the McCarthys, so long as the actual wedding ceremony was not held on their premises, but the court rejected this defense, pointing out that the statute “does not permit businesses to offer a ‘limited menu’ of goods or services to customers on the basis of a status that fits within one of the protected categories.”

The court then turned to the Giffords’ constitutional claims, and here rested its analysis on the proposition that neither the federal First Amendment nor the analogous provision in New York State’s constitution allow people to violate general anti-discrimination laws based on their religious beliefs.  “While we recognize that the burden placed on the Giffords’ right to freely exercise their religion is not inconsequential,” wrote Peters, “it cannot be overlooked that SDHR’s determination does not require them to participate in the marriage of a same-sex couple.  Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so.  To be weighed against the Giffords’ interests in adhering to the tenets of their faith is New York’s long-recognized, substantial interest in eradicating discrimination.   Balancing these competing interests, we conclude that petitioners failed to show that SDHR’s determination constituted an unreasonable interference with the Giffords’ religious freedom.”

The court similarly rejected the Giffords’ other First Amendment claims.  “Here,” wrote Peters, “SDHR’s determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all.  The Giffords remain free to express whatever views they may have on the issue of same-sex marriage.  The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples.”  The court rejected the Giffords’ assertion that holding same-sex marriages in their barn would broadcast to passersby their “support for same-sex marriage.”  The court doubted that anyone would think that a business providing a service in compliance with a law that requires them not to discriminate was making any kind of statement of the owners’ personal beliefs by providing the service.

The court also rejected the “expressive association” claim, finding that “there is nothing in this record to indicate that petitioners’ wedding business was ‘organized for specific expressive purposes’ rather than for the purpose of making a profit through service contracts with customers.”

The court also concluded that the remedy imposed by SDHR was “reasonably related to the wrongdoing, supported by evidence and comparable to the relief awarded in similar cases,” so there was no reason to change it.  The standard for judicial review of the agency’s remedy is “abuse of discretion,” and the court found that SDHR did not abuse its discretion by imposing the $3,000 damage award and the $10,000 fine.

The Giffords and their business are represented by Alliance Defending Freedom, an anti-gay religiously oriented litigation group that actively seeks to vindicate the proposition that free exercise of religion, at least by Christians, should always trump other legal duties.  They will undoubtedly try to get the state’s highest court, the Court of Appeals, to review this ruling, but that court does not have to take the case and is not likely to do so, given the unanimity of the five-member Appellate Division bench and the consistency with appellate rulings from other states involving wedding photographers, florists and bakeries.  Review by the U.S. Supreme Court is also unlikely, since it turned down the wedding photographer case from New Mexico and there is no division among the lower courts that have been ruling on these types of cases.

The McCarthys are represented by Mariko Hirose of the NY Civil Liberties Union and Rose A. Saxe of the ACLU.  SDHR’s appellate attorney Michael Swirsky argued on behalf of the agency in defense of its ruling, and a variety of civil rights and gay rights organizations weighed in as friends of the court, including the NAACP Legal Defense Fund, Lambda Legal and the National Center for Lesbian Rights, as well as New York Attorney General Eric Schneiderman.

Civil Rights Through Administrative Action: Can It Be Effective?

Posted on: October 23rd, 2015 by Art Leonard No Comments

When legislatures refuse to act on proposals to protect LGBT people from discrimination, can civil rights agencies and executive officials just go ahead and extend the protection on their own?  Some recent events put this question sharply into play.

In July 2014, President Obama signed an executive order requiring federal contractors to adopt policies banning discrimination because of sexual orientation or gender identity and extending protection against gender identity discrimination to applicants and employees in the executive branch of the federal government.  (Prior executive orders first adopted during the Clinton administration by agency heads as well as the president extended protection against sexual orientation discrimination to executive branch employees.)  Even before President Obama’s action, the Equal Employment Opportunity Commission (EEOC) had issued an administrative ruling in 2012 that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibited discrimination because of gender identity, a conclusion that was later confirmed by a Justice Department ruling in the same case, Macy v. Holder.

This past summer, the EEOC took a further step, ruling administratively in the case of a gay air traffic controller who had been denied a permanent position by the Federal Aviation Administration under circumstances suggesting that homophobia may have influenced the decision.  The gay man, David Baldwin, filed an internal discrimination claim within the FAA, asserting a violation of Title VII’s sex discrimination ban.  That agency said Title VII didn’t apply, but the EEOC reversed the ruling, holding that sexual orientation discrimination claims can be raised under Title VII, in an opinion announced on July 15.  This left Baldwin with a choice: he could litigate his discrimination claim administratively, or he could, with the authorization of the EEOC, take his dispute to federal court. Baldwin’s attorney announced recently that he will pursue his Title VII claim in federal court.

Most recently, on October 22, New York Governor Andrew Cuomo announced that the New York State Division of Human Rights will be publishing a proposed regulation in the state register on November 4, interpreting the state’s Human Rights Law ban on discrimination because of sex or disability as providing protection against discrimination for transgender people.  The Division will treat “gender dysphoria” as the kind of diagnosable medical condition that falls within the statutory definition of a disability, and it will take the position that discriminating against somebody because of their gender identity is the same for legal purposes as discriminating because of their sex.

These actions by President Obama, Governor Cuomo, the EEOC and the New York State Division come in the face of the failure by Congress or the New York legislature to approve pending legislative proposals to adopt these policies.  They are arguing, in the face of such legislative inaction, that existing laws already provide a basis for acting against such discrimination. These executive and administrative actions can have concrete consequences.  Companies with substantial federal contracts will have to adopt non-discrimination policies if they want those contracts renewed.  Employees who encounter gender identity discrimination will be able to file charges with the EEOC and the State Division of Human Rights, those agencies will investigate the charges, and if they find them meritorious, may attempt to negotiate settlements on behalf of the individuals, take their claims to court, or authorize them to file their own lawsuits, as Baldwin is doing against the FAA.  In fact, the EEOC recently reported that they had administratively resolved 846 discrimination claims nationwide on behalf of LGBT plaintiffs during 2014, the last year for which they have complete statistics, just on the basis of these internal policy interpretations.

The important question now is whether the courts will cooperate when an alleged discriminator resists the agencies’ interpretations?  After all, both the federal and state constitutions give the power to make new laws to the legislatures, not to elected executives or administrative agencies.  The EEOC and the State Division of Human Rights can interpret existing laws, but they can’t manufacture “new” substantive legal rules.  Some defendants in these lawsuits can be counted on to raise the objection that the relevant statutes do not forbid this kind of discrimination.  Courts will have to determine whether these new interpretations are legitimate, and that will turn heavily on the judicial philosophies of the particular judges deciding these cases.

Shortly after Title VII of the federal civil rights act went into effect in July 1965, the EEOC was faced with the question whether gay or transgender people were protected from discrimination by that statute, and its unequivocal answer was “no,” in line with the response of numerous federal courts in early cases.  The EEOC maintained that position through half a century, even as the courts were “evolving” on the issue in light of a Supreme Court decision in 1989, Price Waterhouse v. Hopkins, finding that “sex stereotyping” by an employer could be evidence of unlawful intentional sex discrimination.  By early in this century, several federal courts — include courts of appeals — had accepted this sex stereotyping theory on behalf of some gay and transgender discrimination plaintiffs, and a consensus seemed to be emerging among federal courts that gender identity discrimination could violate Title VII’s sex discrimination ban.  The EEOC relied on these rulings in 2012 when it issued its opinion in Macy v. Holder.

Over the past few years, a handful of federal trial judges have also used the sex stereotyping theory in discrimination cases brought by gay people, and the EEOC seized upon some these opinions this summer, as it celebrated its 50th anniversary of enforcing Title VII, when it ruled on David Baldwin’s discrimination complaint.

One of the biggest barriers to getting trial judges to accept these new interpretations is the system of precedent followed in the court system.  A trial judge is bound by the rulings of the appellate courts.  A federal district court is bound by the rulings of the court of appeals in the circuit in which it is located.

On September 9, a sexual orientation discrimination plaintiff confronted this problem in a federal lawsuit in Florida.  Barbara Burrows sued the College of Central Florida claiming that her sexual orientation was one of the reasons she was fired and argued that the EEOC’s recent decision supported her claim that Title VII applied to her case.  District Judge James Moody, observed that although “the EEOC’s decision is relevant and would be considered persuasive authority, it is not controlling.”  He evidently considered that he was not free to accept her argument, writing, “Until the Supreme Court or Eleventh Circuit recognizes the opinion expressed in the EEOC’s decision as the prevailing legal opinion, the Court declines to reconsider in light of the EEOC’s decision.”

Several other federal court rulings issued since the EEOC’s July 15 Baldwin opinion have not even mentioned it while reaffirming that sexual orientation discrimination claims cannot be asserted under Title VII.  For example, in a dispute between Julio Rodriguez and the New York City Health and Hospitals Corporation, U.S. District Judge Brian M. Cogan in Brooklyn wrote on September 8, “The Second Circuit has decided the question of whether ‘sex’ under Title VII includes ‘sexual orientation’ as a protected class.  It has explained that ‘the law is well-settled in this circuit and in all others to have reached the question that . . . Title VII does not prohibit harassment or discrimination because of sexual orientation.’  Therefore, plaintiff’s argument that he ‘is clearly a member of a protected class, because he identifies as bisexual,’ is wrong.”

Another federal district judge in Brooklyn, John Gleeson, issued a decision on October 16 in a discrimination case brought by Steven D. Moore against Greyhound Bus Lines.  Moore alleged discrimination because of his “sexual preference” and religion.  While finding that Moore’s factual allegations did not meeting the requirements for a discrimination claim in any event, Judge Gleeson dropped a footnote at the end of his opinion, reminding Moore that “Title VII does not apply to allegations of discrimination on the basis of sexual orientation,” referring to the same 2nd Circuit opinion from 2000 that Judge Cogan relied on in his ruling on Rodriguez’s case.

Similarly, in a suit by Jameka K. Evans against Georgia Regional Hospital in the U.S. District Court for the Southern District of Georgia, decided on September 10, U.S. Magistrate Judge G.R. Smith undertook a lengthy discussion of the numerous federal court rulings rejecting sexual orientation claims under Title VII, not once mentioning the EEOC’s Baldwin decision.

To make some headway on this issue a case has to go to the court of appeals. Lambda Legal announced that they have taken that step, urging the 7th Circuit Court of Appeals in Chicago to reverse a lower court ruling and allow a lesbian, Kimberly Hively, to litigate her discrimination claim against Ivy Tech Community College.  Ivy Tech had persuaded the federal district court in the Northern District of Indiana to dismiss Hively’s Title VII case, successfully arguing that Title VII does not apply to sexual orientation claims.  In a hearing before a three-judge panel of the court held on September 30, Lambda argued that the EEOC opinion, together with a handful of earlier federal trial court decisions cited by the EEOC, provide persuasive reasons for the 7th Circuit to set aside its own prior precedents on this issue and embrace the new approach to interpreting “sex” under Title VII.   A three-judge panel of the 7th Circuit may consider itself bound by prior circuit precedent, but Lambda could then petition for an “en banc” rehearing by the full 7th Circuit bench, which could overrule its old precedent.  Or this case could be the vehicle to get the issue before the Supreme Court.

New York Human Rights Agency Rules Against Discriminatory Wedding Venue

Posted on: August 15th, 2014 by Art Leonard No Comments

The New York State Division of Human Rights ruled on August 8 in McCarthy v. Liberty Ridge Farm, Case Nos. 10157952 & 10157963, that a rural wedding venue violated the state’s Human Rights Law by its policy against same-sex weddings.  Commissioner  Helen Diane Foster formally adopted a recommended decision by Administrative Law Judge Migdalia Pares, awarding the complainants $1,500 each in compensatory damages and fining Liberty Ridge Farm $10,000 for its violation of the law.

The complainants, Melisa McCarthy and Jennifer McCarthy, decided to get married in October 2011, after New York’s Marriage Equality Law had gone into effect.  Because Jennifer had proposed to Melisa while they were apple picking at an orchard in the Albany area, they decided to continue this “rustic” theme for their wedding by finding a “wedding barn” in the area.  Their on-line search yielded Liberty Ridge Farm as their first choice.  The website offered the Farm as a wedding venue for hire with pricing packages, catering services, and photographs of wedding ceremonies.  They tried to contact Liberty Ridge by email and then left a phone message.  In September 2012, Cynthia Gifford, a co-owner of the facility, returned their phone call and left a voice message, prompting Melissa to call Gifford.

The telephone conversation took place in September 2013, with Jennifer listening in on the conversation.  Melissa and Gifford discussed renting the Gifford Barn at Liberty Ridge Farm (LRF) to hold a wedding between June and August 2013, and Gifford invited Melissa to visit to check out the facilities.  When Melisa then referred to her fiancé as “she,” the tone of the conversation changed.  Gifford stated that there was “a little bit of a problem” because “we do not hold same sex marriages here at the barn.”  When Melissa challenged the legality of that policy, Gifford responded that “we are a private business.”  When Melissa asked why they had the policy, Gifford said, “It’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.” In response to the subsequent discrimination claim that Melissa and Jennifer filed, the Giffords contended that they have a “specific religious belief regarding marriage” and a “policy” against having such marriages at their barn.

ALJ Pares had first to determine whether Liberty Ridge qualified for an exemption from the state Human Rights Law’s prohibition of sexual orientation discrimination in public accommodations, by virtue of its alleged “private business” status.  The Act exempts “any institution, club or place of public accommodation which proves that it is in its nature distinctly private.”  This is sometimes referred to as the “private club” exemption, enacted to accommodate private membership organizations that are generally not open to the public at large.  The Giffords claimed that their family-owned operation would qualify, but Pares concluded that the facts did not support their contention.  Liberty Ridge is not a membership organization, it advertises its services on-line as being generally available, and as of 2012 it had hosted at least 35 wedding receptions.  These wedding parties involved couples who were not personally known to the Giffords before they were contacted about renting the facilities, so they were purely business transactions.  Pares concluded that LRF is a public accommodation, and rejected the Giffords’ argument that because they live on the third floor of the wedding barn it is their private home rather than a public accommodation.  The evidence showed that the first floor is a public events space, not a private living space, and the second floor apartment was normally rented out to the wedding party as a bridal suite.  Despite the small scale of the operation and family owners, operating as a limited liability corporation (LLC), it clearly qualified as a public accommodation under the Human Rights Act.

Furthermore, the Giffords did not deny that they had adopted a policy against holding same-sex weddings in their facility, based on their personal religious beliefs.  They argued that they had not actually discriminated against Melissa and Jennifer because of their sexual orientation, but Pares concluded that the refusal to make the facility available for their wedding constituted discrimination in violation of the law.  “It is unlawful discrimination to deny a benefit to a member of a protected class based on being a member of that protected class,” she wrote.  “Here, the policy to not allow same-sex marriage ceremonies of LRF is a denial of access to a place of public accommodation.”

Judge Pares also rejected the Giffords’ argument that they could not be held personally liable, since they were doing business as corporation, but Pares found that the New York Human Rights Law “extends liability for discriminatory acts in a place of public accommodation to agents and owners of same.  Even using Respondents’ own logic that the Giffords are ‘agents’ of LRF LLC, and acted as agents when applying a discriminatory policy to Complainants, they are nonetheless individually liable.  The Giffords themselves committed unlawful discrimination against a same-sex couple.”

Pares concluded that “an award of $1,500 to each aggrieved Complainant for mental anguish each suffered as a result of Respondents’ unlawfully discriminatory conduct is warranted.”  She also concluded that a civil fine of $10,000, payable to the state, was warranted in light of the circumstances.

In an article reporting on the decision published on August 15, the Albany Times Union quoted the Giffords’ attorney, Jim Trainor, who said they were considering an appeal to the courts, and Trainor expressed surprise that the opinion did not consider the Supreme Court’s recent Hobby Lobby decision, which held that a family-controlled corporation could deny coverage of contraception to employees because of the owners’ religious beliefs.  Hobby Lobby was based on an interpretation of a federal statute, the Religious Freedom Restoration Act, which restricts the federal government from burdening religious beliefs without showing a compelling governmental interest, and requires that the government policy impose the least restrictive alternative on religious objectors.  That decision has no application to state laws.

Although many states have passed their own versions of the Religious Freedom Restoration Act in response to a U.S. Supreme Court decision, Employment Division v. Smith, which held that individuals could not claim a constitutional religious exemption from compliance with neutral laws of general application, New York has not done so, having rejected such a proposed statute in 1997.  Thus, any 1st Amendment claim by the Giffords would be futile under Employment Division v. Smith, since the N.Y. Human Rights Act is a religiously-neutral law of general application.  Religious organizations in New York are deemed “distinctly private” for purposes of the public accommodations law, and are thus statutorily exempt from complying, but businesses in New York do not enjoy a statutory exemption based on their owners’ religious beliefs.  Unless the New York courts were to construe the state constitution’s guarantee of individual religious liberty more broadly than the U.S. Supreme Court has construed the federal 1st Amendment, there seems slight chance that this decision would be reversed by the state courts based on the Giffords’ religious objections, and there appears to be no basis for U.S. Supreme Court review, unless that Court is interested in overruling Employment Division v. Smith, an opinion that was written by Justice Antonin Scalia.  Having decided to enter the commercial sphere by advertising and providing a wedding venue for hire with catering in their barn, they have to play by the rules governing the commercial sphere, including the Human Rights Law.