Your Subject Doesn’t Matter: Subject Matter Jurisdiction and the Human Rights Law in Hoffman v. Parade Publications

Lisa Alexander, Public Relations Chair, Albany Government Law Review Member

Introduction

Mr. Howard Hoffman said he was fired because of his age.  The New York Court of Appeals essentially said too bad.  In a 4-3 decision, the court held that since Mr. Hoffman was “neither a resident of, nor employed in, the City or State of New York . . . .  [and did not] state a claim that the alleged discriminatory conduct had any impact in either of those locations” he was not covered by the Human Rights Laws and thus his claim was properly dismissed for lack of subject matter jurisdiction.[1] Though the majority strenuously argued that non-residents who are unable to show that a discriminatory act had an impact in New York are prevented from bringing claims under the Human Rights Laws, this conclusion is contrary to precedent and public policy.

The New York City and State Human Rights Laws

At issue in Hoffman was the scope of the protection granted by the New York City and State Human Rights laws.  The stated purpose of the New York State Human Rights Law (NYSHRL) is to

assure that every individual within [New York] is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity . . . not only threatens the rights and proper privileges of its inhabitants but . . . threatens the peace, order, health, safety and general welfare of the state and its inhabitants.[2]

The statute goes on to create a department charged with ensuring that “every individual [ ] have an equal opportunity to participate fully in the economic, cultural and intellectual life of the state . . . .”[3] The NYSHRL protects individuals from being discriminated against in a number of areas,[4] including employment,[5] and states that employers shall not discriminate against an individual based on a number of protected categories.[6] Among numerous other protections, NYSHRL provides that it is an unlawful discriminatory practice for an employer to terminate an employee because of his or her age.[7]

Much like its state counterpart, the New York City Human Rights Law (NYCHRL) has a general purpose of protecting individuals from various forms of discrimination.[8] Specifically, it notes “there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another . . . [P]rejudice, intolerance, bigotry, and discrimination . . . threaten the rights and proper privileges of [the city’s] inhabitants.”[9] The NYCHRL also protects individuals from being terminated from their employment based on age.[10]

No Impact, No Jurisdiction: The Majority’s Decision

According to plaintiff, Mr. Hoffman’s complaint, he began his employment in 1992 and was terminated in 2008 at the age of 62.[11] Though he did not reside in New York or regularly work at defendant Parade Publication’s New York City office, Mr. Hoffman had other contacts with New York State and New York City.[12] Namely, he alleged that “he would participate in weekly telephone conferences with Parade’s New York office, would attend quarterly meetings in the New York office, and from ‘time to time’ would travel to the New York office to discuss projects and other assignments.”[13] He also alleged that his supervisors in the New York office monitored him and that corporate contracts were negotiated at the New York headquarters.[14]

Parade’s decision to terminate Mr. Hoffman (allegedly due to his age) was made in New York, and the call relaying this decision to him was made by Parade’s New York office.[15] Subsequent to being fired, Mr. Hoffman traveled to Parade’s New York office to offer an alternative to his termination.[16] After his offer was rejected, he commenced an action under the New York State and City Human Rights Laws for age discrimination.[17] Parade moved to dismiss the complaint for lack of subject matter jurisdiction.[18]

The majority began their decision by addressing the plaintiff’s NYCHRL claim and stating that the statutory language was “clear” in that NYCHRL’s protections were only granted to inhabitants or “persons in” New York City.[19] In deducing that NYCHRL was strictly for the protection of those living in New York City, the majority emphasized certain language found in the policy section of the Administrative code.  Specifically, they focused on the statute’s use of “inhabitants” and “in the city of New York” and concluded that non-residents were not accorded protection under the NYCHRL.[20]

Going on to note the disagreement among state and federal courts regarding whether NYCHRL applies to non-residents who do not work in New York City, the majority cited a number of cases that they argued require a non-resident plaintiff prove that the discriminatory conduct had an impact in the City.[21] The majority adopted this impact test, noting that simply allowing a plaintiff to establish that the employer’s decision to terminate the employee in the City “is impractical, would lead to inconsistent and arbitrary results, and expands NYCHRL protections to non-residents who have, at most, tangential contacts with the City.”[22] Transferring this reasoning to the plaintiff’s NYSHRL claim, the majority concluded that it should also be dismissed.[23] The court also extracted certain statutory terms and phrases, including “the people of this state,” “within [New York State],” and “inhabitants.”[24] The use of these terms, the majority stated, evidenced an “obvious” intent to protect those who live and work in New York, and therefore non-residents would have to prove the discriminatory conduct had an impact in New York.[25]

The court  further cited NYSHRL’s 1975 amendment, which “protects New York residents, domestic corporations, and corporations doing business in New York from discriminatory acts committed outside the state” and makes state residents and domestic corporations that commit an unlawful discriminatory practice against out-of-state New York residents subject to most of NYSHRL’s provisions.[26] This led the majority to conclude that the Legislature had not intended to extend the law’s protections to non-residents who cannot show a discriminatory impact within the state.[27]

Why Impact Should Be Irrelevant

Although the majority stressed that the purpose of NYCHRL and NYSHRL is to protect inhabitants or persons within the City or State,[28] that assertion is highly debatable.  Both the definition of “obvious”[29] and common sense indicate that if the aforementioned laws were not intended to protect non-residents, less discrepancy between court decisions addressing the issue would exist.  As the dissent pointed out, “neither act has a residency requirement to assert a claim.”[30] While both laws have a definitional section, neither “inhabitant” nor “the people of this state” are defined.[31] This lack of definitional fodder led Judge Jones to assert in his dissent that NYSHRL’s purpose is “broad and . . . threefold: to prevent discrimination against individuals within [New York]; to protect the inhabitants of [New York] from discrimination; and to protect the general welfare of this state by curbing unlawful discriminatory practices within [New York].”[32] Applying the dissent’s argument to Hoffman, the purpose of NYSHRL would be served by allowing Mr. Hoffman to proceed with his complaint.  Even assuming that Mr. Hoffman and others similarly situated would not be considered to have been discriminated within New York, allowing such claims to proceed would protect the general welfare of the state by preventing discriminatory practices against residents and non-residents alike.

The dissent acknowledged that some New York State and federal court decisions have required that the discriminatory act occur within the City or State and that the impact of the conduct be felt in the jurisdiction. [33] However, these cases are distinguishable from Hoffman.  For instance, in Shah v. Wilco Systems, the plaintiff did not allege that the decision to terminate her was made in New York City or that she was informed of her termination at the defendant’s New Jersey office, and the conduct allegedly leading to her termination occurred at the New Jersey site.[34] This case is factually distinct from Hoffman, where the decision to terminate the plaintiff was made in New York City and the call notifying him of his termination originated from defendant’s New York City office.[35] While the majority asserted that Shah held a non-resident plaintiff must demonstrate the discriminatory conduct had an impact in New York,[36] the Appellate Division aptly pointed out that the use of the impact test was mere dicta not essential to the holding.[37] In Shah, there was no question that the discriminatory impact occurred in New Jersey, that all relevant decisions were made in New Jersey, and that there was no evidence of a discriminatory decision originating in New York.[38] Therefore, the court’s statement that “the locus of the decision to terminate her is of no moment” was unnecessary to the holding and unnecessarily broad.[39]

Other court decisions support the argument that an in-state impact is not required for jurisdiction to be obtained over a non-resident suing under the NYCHRL or NYSHRL.  In Tebbenhoff v. Electronic Data Systems Corporation, the plaintiff, a New Jersey resident, traveled throughout the Mid-Atlantic and “worked from home.”[40] In its decision, the district court held that the plaintiff’s claim was jurisdictional under NYSHRL “because the decision to terminate and the termination occurred in New York.”[41] While the court noted cases applying the impact rule, it allowed the plaintiff to proceed with his NYCHRL claim, arguing that since the discriminatory act was committed in New York City, “his termination cannot be said to have had no impact within New York City.”[42] Similarly in Hoffman, the decision to terminate the plaintiff was made in New York City.  While the plaintiff was not present in New York at the time he was fired, the call communicating his termination was placed from the defendant’s New York office, and thus the discriminatory action could be said to have occurred in New York.

Rylott-Rooney v. Alitalia-Linee is strikingly similar factually to Hoffman.  In Rylott-Rooney, the plaintiff, who was a Minnesota resident working from the defendant’s Minneapolis office, brought NYCHRL and NYSHRL claims against her employer for age discrimination.[43] As part of her claim, the plaintiff alleged that she had phone contact with, and occasionally reported to, the New York office; attended work-related meetings at the New York office; and the decision to terminate her was made in New York and she was informed of it while in New York.[44] In its decision, the court reviewed conflicting federal authority and held that Human Rights Law should “apply either when the initial discriminatory act . . . occurs in New York or when the original experience of injury, which occurs at the employee’s workplace, is in New York.”[45] Applying this test to Hoffman, the Human Rights Laws would likely apply because the initial discriminatory act, the decision to terminate, and the communication of that decision occurred in New York.

The Impact of the Impact Test

Mr. Howard Hoffman is not the only person who has been ousted from the protective cover of the NYCHRL and NYSHRL.  Hoffman makes clear that any non-resident employee who cannot show either that he or she works in New York or that a discriminatory impact occurred in New York, may be discriminated against without the recourse of the Human Rights Laws.  The Hoffman majority opinion makes clear that an employer’s decision to terminate an employee made in and communicated from New York, even if discriminatory, will not satisfy the impact test.  Implicit in the decision is the conclusion that attending quarterly meetings in New York and having regular phone contact with New York will not constitute working in the City or State.  Essentially, this means that if a non-resident employee cannot show a discriminatory impact, the employer is free to discriminate against him or her without repercussion under the NYCHRL or NYSHRL.

Though unfavorable to non-resident employees, the  decision by the Court of Appeals is beneficial to New York City headquartered companies that “no longer face exposure to the broader liability standards and available damages under NYCHRL when making decisions concerning employees living and working outside the City limits.”[46] The irony is that the Human Rights Laws are designed to protect individuals, in this case employees, from discrimination, as well as the “peace, order, health, safety and general welfare” of the state. [47] The only thing “obvious” about the court’s decision is that it subverts this policy and inadvertently gives employers a license to make discriminatory decisions to terminate non-resident employees.


[1] Hoffman v. Parade Publ’n,  2010 N.Y. LEXIS 1346, at **10 (July 1, 2010).

 

[2] N.Y. Exec. § 290(3) (McKinney 2010).

[3] Id.

[4] Id. § 296.

[5] Id. § 296(1).

[6] Id. § 296(1)(a) (these bases are “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status”).

[7] Id.

[8] New York City, N.Y., Admin. Code §8-101 (2010), available at http://www.nyc.gov/html/cchr/html/ch1.html.

[9] Id.

[10] Id. § 8-107(1)(a).  For a complete description of unlawful discriminatory practices under the NYCHRL, see § 8-107.

[11] Hoffman v. Parade Publ’n, 65 A.D.3d 48, 49 (1st Dep’t. 2009).

[12] Hoffman, 2010 N.Y. LEXIS 1346, at **10.

[13] Hoffman v. Parade Publ’n, 2008 N.Y. Misc. LEXIS 9972, at **2 (N.Y. Sup. Ct. July 2, 2008).

[14] Id

[15] Hoffman, 2010 N.Y. LEXIS 1346, at **11 (Jones, J. dissenting).

[16] Id. at **17.

[17] See id.

[18] Id. at **2.

[19] Id. at **3.

[20] Id. at **4 (internal citation omitted).

[21] See Hoffman, 2010 N.Y. LEXIS 1346, at **5–6 (internal citation omitted).

[22] Id. at **6.

[23] Id. at **7.

[24] Id. at **7–8 (internal citation omitted).

[25] Id. at **8.

[26] Id. at **9.

[27] Glen P. Doherty, Labor and Employment Practice, http://www.albanycountybar.com/news_

and_articles/news_detail.cfm?ID=2 (last visited Sept. 4, 2010).

[28] See id.

[29] Meriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/obvious (stating one definition of obvious is “easily seen or understood.”).

[30] Hoffman, 2010 N.Y. LEXIS 1346, at **13 (Jones, J. dissenting).

[31] See N.Y. Exec. §293 (McKinney 2010); New York City, N.Y., Admin. Code §8-102 (2010).

[32] Hoffman, 2010 N.Y. LEXIS 1346, at **12 (Jones, J. dissenting).

[33] Id. at **13–14.

[34] Shah v. Wilco Sys, Inc., 27 A.D.3d 169, 172–73 (1st Dep’t. 2005).

[35] Hoffman, 2008 N.Y. Misc. LEXIS 9972, at **5.

[36] Hoffman, 2010 N.Y. LEXIS 1346, at **5.

[37] Hoffman, 65 A.D.3d at 53.

[38] Id.

[39] Id.

[40] Hoffman, 2010 N.Y. LEXIS 1346, at **15 (Jones, J. dissenting).

[41] Id. at **15 (citing  Tebbenhoff v. Elec. Data Sys. Corp., No. 02 CV 2932(TPG), 2005 WL 3182952, at *5 (S.D.N.Y. Nov. 29, 2005)).

[42] Id. at **16 (quoting Tebbenhoff, 2005 WL 3182952, at *6).

[43] Id. (citing Rylott-Rooney v. Alitalia-Linee Aeree Italiane-Societa Per Azioni, 549 F. Supp. 2d 549 (S.D.N.Y. 2008)).

[44] Id.

[45] Id. (citing Rylott-Rooney, 549 F. Supp. 2d at 552–54) (emphasis added).

[46] Andrew Marks and Shannon Morales, Dustin’ Off Hoffman v. Parade Publication, Mondaq, July 14, 2010, http://www.mondaq.com/unitedstates/article.asp?article_id=105362 (last visited Sept. 4, 2010).

[47] Hoffman, 2010 N.Y. LEXIS 1346, at **11 (Jones, J. dissenting).

** Please note that Hoffman v Parade Publications should be italicized in the title.

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