New York Human Rights Law Does Not Apply To Non-Residents.

Hoffman v. Parade Publications, ___N.Y.3d____(July 1, 2010), is an interesting case. New York's highest court held that protections of New York State and City Human Rights Laws do not extend to an employee who does not reside or work in New York, even though he is employed by corporation headquartered in New York City. Additionally, the allegedly discriminatory decision to terminate him was made in NYC and he had other contacts with headquarters. The court reasoned that the statutes' protections are afforded only to "inhabitants" of city and state. The court described the appropriate standard to be applied as follows:

Both the City and the State Human Rights Laws deem it an "unlawful discriminatory practice" for an employer to discharge an employee because of age (see Administrative Code of City of N.Y. § 8-107 [1] [a]; Executive Law § 296 [1] [a]). The question raised on this appeal is whether non-residents of the City and State must plead and prove that the alleged discriminatory conduct had an impact within those respective boundaries. We hold that the policies underpinning those laws require that they must.

Addressing Hoffman's City Human Rights Law claim first, it is clear from the statute's language that its protections are afforded only to those who inhabit or are "persons in" the City of New York. The law declares, among other things, that "prejudice, intolerance, bigotry and discrimination . . . threaten the rights and proper privileges of [the City's] inhabitants," and that "[i]n the city of New York . . . there is no greater danger to the health, [*3]morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another . . . because of their actual or perceived differences, including those based on . . . age . . ." (Administrative Code of City of N.Y. § 8-101 [emphasis supplied]). To combat these prejudices, the law created the city commission on human rights to, among other things, "foster mutual understanding and respect among all persons in the city of New York" (id. at § 8-104[1] [emphasis supplied]). In addition to investigating complaints of discrimination (see id. at § 8-105 [4][a]), the commission is also charged with working with other municipal agencies in "developing courses of instruction . . . on techniques for achieving harmonious intergroup relations within the city of New York" (id. at § 8-105[1]).

There is disagreement among state and federal courts concerning the territorial reach of the City Human Rights Law in circumstances where the alleged discriminatory conduct is against a non-resident who does not work in New York City. Some courts have concluded that a non-resident plaintiff may invoke the protections of the NYCHRL by merely alleging and proving that the discriminatory decision to terminate was made in the City (see Hoffman v Parade Publications, 65 AD3d at 50; Rohn Padmore, Inc. v LC Play Inc., 679 F Supp 2d 454, 465 [SD NY 2010] [non-resident plaintiff working in California need only show that the alleged discriminatory decision to terminate occurred in the City]).

Other courts have taken the view that the non-resident plaintiff must demonstrate that the alleged discriminatory conduct had an "impact" within the City (see Shah v Wilco Sys., Inc., 27 AD3d 169, 176 [1st Dept 2005] [even if termination decision was made in the City, its impact on the plaintiff was felt outside the City]; Pearce v Manhattan Ensemble Theater, Inc., 528 F Supp 2d 175, 184-185 [SD NY 2007] [same]; Wahlstrom v Metro-North Comm. R.R. Co., 89 F Supp 2d 506, 527-528 [SD NY 2000]; Duffy v Drake Beam Morin, 1998 WL 252063, *11 [SD NY 1998]). Courts adopting the impact requirement have done so out of concern that merely focusing the inquiry on where the termination decision is made—as opposed to where the impact of that decision is felt—results in the expansion of the NYCHRL to cover any plaintiff who is terminated pursuant to a decision made by an employer from its New York City headquarters regardless of where the plaintiff works (see Wahlstrom, 89 F Supp 2d at 527-528 citing Duffy, 1998 WL 252063, *12).

We hold that the impact requirement is appropriate where a non-resident plaintiff invokes the protection of the City Human Rights Law. Contrary to Hoffman's contention, the application of the impact requirement does not exclude all non-residents from its protection; rather, it expands those protections to non-residents who work in the City, while concomitantly narrowing the class of non-resident plaintiffs who may invoke its protection.

The Appellate Division's rule that a plaintiff need only plead and prove that the employer's decision to terminate was made in the City is impractical, would lead to inconsistent [*4]and arbitrary results, and expands NYCHRL protections to non-residents who have, at most, tangential contacts with the City. Indeed, the permutations of such a rule are endless, and, although the locus of the decision to terminate may be a factor to consider, the success or failure of an NYCHRL claim should not be solely dependent on something as arbitrary as where the termination decision was made. In contrast, the impact requirement is relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the NYCHRL to those who are meant to be protected—those who work in the City (see Administrative Code of City of N.Y. § 2-201 [defining the territory of the City as constituting the five boroughs, and declaring that the "jurisdictions and powers of the city are for all purposes of local administration and government . . . co-extensive with the territory . . . described"]).

Mitchell H. Rubinstein