Excerpts from the decision in Weiss v. JP Morgan Chase, 2010 WL 114248( S.D.N.Y. Jan 13, 2010):
The parties do not dispute that pursuant to the Supreme Court's decision in Gross v. FBL Services, 129 S.Ct. 2343 (2009), the "but-for" standard applies to plaintiff's ADEA claim. The parties do dispute, however, whether this standard also applies to plaintiff's NYCHRL claim. For the following reasons, the "but-for" causation standard does not apply to age discrimination claims brought under the NYCHRL. Rather, the NYCHRL requires only that a plaintiff prove that age was "a motivating factor" for an adverse employment action.
In 2005, the New York City Council explicitly rejected the notion that the NYCHRL is equivalent to its federal counterparts, despite any textual similarities between them. See Loeffler, 582 F.3d at 278. The Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (Oct. 3, 2005) (the "Restoration Act") amended the NYCHRL to, inter alia, abolish "parallelism" between the NYCHRL and its federal and state counterparts. Loeffler, 582 F.3d at 278. Specifically, the Restoration Act amended the construction provision of the NYCHRL to read:
The provisions of this [] title 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.
Restoration Act. /FN4 The Second Circuit has interpreted the Restoration Act as requiring courts to review claims under the NYCHRL "independently from and more liberally" than their federal counterparts. Loeffler, 582 F.3d at 278 (citation omitted). In interpreting the NYCHRL, a court must "view[] similarly worded provisions of federal and state civil rights laws as a floor below which the [NYCHRL] cannot fall." Id. (citing Restoration Act § 1) (emphasis in original). Thus, the Restoration Act created a "one-way ratchet." Id.
Tellingly, even after enactment of the Restoration Act, the Second Circuit has continued to apply the same "motivating factor" causation standard to employment discrimination claims under the NYCHRL that applies to equivalent claims under Title VII. See, e.g., Patane v. Clark, 508 F.3d 106, 112-13 (2d Cir. 2007) (applying Title VII standard to gender discrimination claim under NYCHRL). At least until Gross, this standard was also applied to age discrimination claims under the NYCHRL. See, e.g., Tomassi, 478 F.3d at 114 & n.3 (determining under the NYCHRL whether plaintiff's "dismissal was motivated at least in part by age discrimination"). The application of a uniform causation standard to employment discrimination claims under the NYCHRL makes sense in light of its text. Unlike federal law, the NYCHRL does not differentiate between age and other protected characteristics, such as gender, race, and religion. See N.Y.C. Administrative Code § 8-107(1)(a).
Since there is no textual support for differentiating among NYCHRL employment discrimination claims, if "because of" were interpreted to impose a "but-for" causation standard for age discrimination claims, the same restrictive standard would necessarily apply to claims based on other protected characteristics. If this were the case, the NYCHRL would actually provide less protection against other types of discrimination, such as that based on race, gender, or religion, than is currently provided by Title VII. Such a result would be perverse given that federal civil rights laws are supposed to be a "floor" below which the NYCHRL cannot fall. See Loeffler, 582 F.3d at 278. It would also be contrary to the Second Circuit's instruction that courts must review claims under the NYCHRL "independently from and more liberally" than their federal counterparts. Id. (citation omitted).
Accordingly, instead of carving out a more restrictive causation standard for age discrimination claims under the NYCHRL, its "because of" language should continue to be interpreted as requiring a plaintiff to prove only that age was "a motivating factor." This interpretation is consistent with the text of the NYCHRL and maintains a uniform causation standard for employment discrimination claims under the NYCHRL, regardless of the protected characteristic at issue.
FN4 -
In determining the "uniquely broad and remedial purposes" of the NYCHRL, the First Department in Williams v. N.Y. City Hous. Auth., 872 N.Y.S.2d 27 (1st Dep't 2009), found that the Committee Report accompanying the Restoration Act provides "significant guidance." Id. at 32. Thus, the Committee Report states that the intent of the Restoration Act was "to ensure construction of the [NYCHRL] in line with the purposes of fundamental amendments to the law enacted in 1991," all of which expanded , not restricted, the protections afforded by the NYCHRL. See id. at 31. The Restoration Act was also intended to "reverse the pattern of judicial decisions that had improvidently narrowed the scope of the [NYCHRL's] protections." Id. at 31 (emphasis added). Further, one of the "key principles" that should guide a court's analysis of claims brought pursuant to the NYCHRL is that "discrimination should not play a role in decisions made by employers." Id. (emphasis added).
ADC Note:
The "play no role" language is also found in the policy section of the City HRL (Admin. Code § 8-101).