New York Court of Appeals adds teeth to state anti-retaliation law by Stephen Bergstein, LLC

The New York Court of Appeals has held that a housing complex that threatened litigation against a "tester" organization that accused it of housing discrimination can be liable under the state law that prohibits retaliation for asserting discrimination claims.

The case is Clifton Park Apartments v. New York State Division of Human Rights, issued on February 15. The tester organization is City Vision, which called Pine Ridge II Apartments, owned by Clifton Park Apartments, purportedly seeking to rent an apartment. The purpose of this inquiry was to see if the apartments were practicing discrimination. City Vision then filed a complaint with the Division of Human Rights (DHR), asserting that the apartments had discriminated against Leigh Renner, a City Vision employee, by directing her to a different apartment when it learned that Renner had children. That would violate the prohibition against marital status discrimination under state law. 

After the DHR dismissed the complaint and held there was no probable cause, the apartments sent City Vision and Renner a letter stating it was "looking to" City Vision and Renner "personally for the damages that" the apartments "sustained as a result of this wrongful conduct." The letter also said the apartments regarded the discrimination allegations as "false, fraudulent and libelous." City Vision next brought a retaliation charge against the apartments over this letter, and DHR ruled in City Vision's favor following a hearing. The letter threatening litigation was retaliatory, the DHR held. City Vision won their retaliation case, and DHR awarded $4,775.00 in damages for its diversion of resources to find counsel in the wake of the litigation threat. DHR also imposed a civil fine in the amount of $2,500.00.

While the Third Department vacated the DHR's finding on the basis that "the mere sending of the letter letter" was not retaliatory under state law, the Court of Appeals unanimously reverses. Under the federal standard guiding retaliation claims, an employer or apartment complex engaged in unlawful retaliation if its response to a discrimination allegation would dissuade a reasonable employee from making or supporting a charge of discrimination. That's the Burlington Northern test from 2006. The reason for this test is that those who accuse others of discrimination in good faith will not do so if the defendant takes action that will prevent others from doing so in the future. 

Under this test, there is enough evidence in the record to support the DHR's finding, the Court of Appeals holds, as (1) the letter reasonably suggested the apartments were threatening litigation against City Vision and Renner, and (2) the letter "shocked" its recipients and forced City Vision to spend resources to find counsel to address the threat. This would dissuade a reasonable entity such as City Vision from asserting discrimination claims in the future, because let's face it, who wants to be threatened with soul-killing and expensive litigation? 

Article posted by permission from Wait A Second! Keeping track of the civil rights opinions of the United States Court of Appeals for the Second Circuit. Brought to you by Bergstein & Ullrich.