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Law in effect at the time litigation was initiated applies notwithstanding a subsequent amendment liberalizing such law

Law in effect at the time litigation was initiated applies notwithstanding a subsequent amendment liberalizing such law
Barnum v New York City Tr. Auth., 2009 NY Slip Op 03855, decided on May 12, 2009, Appellate Division, Second Department

In Williams v N.Y.C. Housing Authority, 2009 NY Slip Op 00440, (1st Dep't January 17, 2009), the court indicated that the federal standard for sexual harassment claims - in the absence of proof of tangible job detriment the complainant must show that he or she was subjected to "severe or pervasive" acts of harassment - does not apply to claims brought under the City Human Rights Law. The current test, said the court, is "whether the plaintiff has proven ? that he or she has been treated less well than other employees because of her gender."

This new test reflects the changes enacted by New York City?s Local Law 85, §7, which took effect in 2005, whereby the City?s civil and human rights laws ?shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.?

In Barnum?s case, however, the Appellate Division said that her complaint was filed in 2004 and consequently her cause of action must be evaluated in accordance with the law in effect as of the date of the commencement of the action. As Local Law 85 did not take effect until 2005, the court ruled that it was required to apply the standards for recovery under Title VII of the federal Civil Rights Act of 1964 (42 USC § 2000-e[2] et seq.) to her claims asserted pursuant to both the Executive Law and the New York City Human Rights Law.

Flora Barnum complained that she was subjected to harassment by her supervisor. Under Executive Law §296, "[a] hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Further, "To recover against an employer for the discriminatory acts of its employee, the plaintiff must demonstrate that the employer became a party to such conduct by encouraging, condoning, or approving it."

In its motion to dismiss Barnum's lawsuit, the New York City Transit Authority established that it did not approve or condone the behavior of its supervisor. Further, said the court, ?viewing the totality of the evidence in the light most favorable to [Barnum], the offensive conduct was not sufficiently severe or pervasive to alter the conditions of her employment." Accordingly, the Authority made a prima facie showing of entitlement to judgment as a matter of law dismissing the hostile work environment cause of action under the law as it existed at the time Barnum commenced her cause of action.

The Appellate Division pointed out that Barnum's lawsuit was commenced in 2004, but the current liberalized standards of interpretation applicable to the New York City Human Rights Law did not become effective until 2005. Consequently, to the extent that Barnum?s complaint may be read as asserting a cause of action pursuant to the New York City Human Rights Law, the issue of whether summary judgment should have been awarded to the NYCTA dismissing that cause of action must be assessed in accordance with the law in effect as of the date of the commencement of her lawsuit.

Thus the standards for recovery under Title VII of the federal Civil Rights Act of 1964 control with respect to claims asserted pursuant to both the Executive Law and the New York City Human Rights Law prior to the effective of the amendment. Applying those standards, the Appellate Division ruled that the Authority?s motion for summary judgment should have been granted by Supreme Court and Barnum?s petition dismissed.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03855.htm

Full post as published by New York Public Personnel Law on May 20, 2009 (boomark / email).