What Is The Measure Of Punitive Damages Under NYC Anti-Discrimination Law?

Salt to taste. Such a simple and innocent instruction. We’ve all read those words a million times over the years without thinking anything of it. Ever wonder what it really means?”


What the heck is a pic of a chef doing in this employment discrimination post?

Well, you gotta read on.


Practitioners in NY know that the New York City Human Rights Law, a/k/a/ “NYCHRL” (N.Y.C. Admin. Code § 8‐107) is about as liberal as the anti-discrimination laws get (outside of California, perhaps).   More liberal than Title VII, and more liberal than NYS law.

Indeed, the law was passed with the City Council’s caveat that it “shall be construed liberally.”  And the courts in NY have done just that.

But an unanswered question arose in a case before the federal court:

“Whether the standard for punitive damages is the same under both Title VII and the NYCHRL, or if a liberally construed NYCHRL might set forth a broader standard for liability.”

Why, What, Question, Ask, Purple Man, 3D

NYCHRL does not provide an answer, and the trial court quite reasonably applied a Title VII standard – which courts have done frequently when state laws are being construed — and did not provide a punitive damages instruction to the jury.

The appeals court asked: “What is the meaning of the phrase ‘shall be construed liberally.'”

The court then got a little whimsical:

“Just as the recipe instruction to ‘apply liberally’ has bedeviled many an amateur chef, the New York City Council’s directive that courts shall construe the City’s Human Rights Law (“NYCHRL”)liberally presents its own interpretive challenge. We confront a seemingly straightforward but surprisingl   vexing question. …”

Oh, now I get it!  “Apply liberally” … “salt to taste” …. CONSTRUE liberally” … 

How clever!

Because this is an important issue of state/city law, the federal appeals court deferred the issue to the highest state court in NYS for an answer – the NY Court of Appeals.  In legalese, it “certified the question” to the state’s highest court, and now will await an answer.

We too eagerly await an answer.  In the meantime, “salt to taste.”



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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]