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In 2010, the New York Court of Appeals (which is the highest state court in New York) established a test to determine the territorial scope of the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) – each of which protect employees and applicants for employment from employment-based discrimination. In Hoffman v. Parade Publs., a former employee of a New York City-based company sued under the NYSHRL and NYCHRL for age discrimination after being terminated by his employer. 15 NY3d 285 (2010). The plaintiff in Hoffman alleged that the decision to terminate him was made in NYC. But there was a twist – the plaintiff was a Georgia resident who never lived or worked in NYC. The Hoffman court held that nonresident plaintiffs like Hoffman could not invoke the protection of the NYCHRL or NYSHRL unless they “plead and prove that the alleged discriminatory conduct had an impact within” NYS or NYC.
In a recent decision,[1] the Court revisited Hoffman’s “impact” test in the context of a nonresident plaintiff who alleged that she was discriminatorily denied a NYC-based job opportunity. The Court distinguished between discriminatory termination claims, on the one hand, and discriminatory failure to promote or hire claims on the other. The Court unanimously held that nonresident plaintiffs falling into the latter category “fit[] comfortably within the Human Rights Laws’ protection.”
The case involved female reporter based in Washington, D.C. Hoping to advance her career, she applied for a position in her employer’s NYC office. Ultimately, the position was awarded to one of her (male) coworkers, whom she claimed was less qualified than her for the role. She also alleged that her supervisor told her she would not be considered for the role because it was not a “diversity slot.”
The Court explained that, unlike the plaintiff in Hoffman who “was not a New York inhabitant and did not seek to become one,” the reporter proactively sought an actual NYC or NYS-based job opportunity and lost “the chance to work, and perhaps live” within NYS or NYC. Therefore, the Court held that nonresident plaintiffs, like the reporter in this case, who are denied a NYC or NYS-based job opportunity on discriminatory grounds are covered by the NYSHRL or NYCHRL.[2]
The Court’s decision expands the geographic reach of the NYCHRL and NYSHRL by allowing nonresident plaintiffs who never lived or worked in NYS or NYC to bring claims for harms suffered outside the state or city. One silver lining for employers: the Court’s decision was limited to “a position that requires the employee to be physically present in New York.” In other words, nonresident plaintiffs applying for a remote position with a NYC or NYS based company are not – for now, at least – covered by the NYCHRL or NYSHRL.
[1] Plaintiff sued her employer in NYS court, alleging that she was denied a promotion on the basis of her sex and race. Although she never actually lived or worked in NYS or NYC, the plaintiff claimed that the NYSHRL and NYCHRL protected her because she applied for, and was denied, a NY-based position. The case was removed to the United States District Court for the Southern District of New York. That court dismissed the plaintiff’s failure-to-promote claims, holding that coverage under the NYSHRL and NYCHRL does not extend to nonresident plaintiffs unless the impact of the discrimination was actually felt by the plaintiff – not the employer – in NYC or NYS. The plaintiff appealed to the U.S. Court of Appeals for the Second Circuit, and the Second Circuit asked the New York Court of Appeals to resolve whether NYS and NYC’s anti-discrimination laws apply to non-residents seeking a NYC or NYS-based job opportunity.
[2] The Court noted that its decision was buttressed by the general “mandate” to construe the NYCHRL and NYSHRL broadly in favor of discrimination plaintiffs, and by “important policy considerations” – including the loss of economic and civic contributions from individuals discriminatorily denied an opportunity to work in NYS or NYC. However, the Court did not seriously engage with the policy considerations recognized in Hoffman (i.e., allowing nonresident plaintiffs to bring suit under the NYSHRL or NYCHRL based only allegations that an employer’s decision to terminate was made in the city would be impractical, lead to inconsistent and arbitrary results and expand the protections of the NYCHRL and NYSHRL to nonresidents who have, at most, tangential contacts with the state or city.)
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