NYC Human Rights Law: notes for lawyers

1. How far does liberal construction reach after McCabe and Doe?

The issue. Section 8-130 requires the City law to be construed liberally “regardless of whether” comparably worded State or federal provisions have been, and § 8-130(c) endorses Albunio, Bennett and “the majority opinion in” Williams. Plaintiffs routinely cite § 8-130 as if it resolves any interpretive question in the employee’s favor.

For a broad reach. The text is emphatic and was amended in 2016 precisely because courts were still reading the law narrowly. Albunio construes the law “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (16 N.Y.3d at 477–78).

Against. The Court of Appeals has twice now declined to extend the § 8-130(c) cases. Doe held that a construction “must be reasonable and grounded in the language of the local law” and refused to treat an owner or officer as an “employer” (36 N.Y.3d at 459, 462). Matter of McCabe quoted that sentence, held that “marital status” means legal marital condition, and distinguished the § 8-130(c) cases as each addressing “a discrete aspect of a discrimination claim,” whereas the petitioner sought “to redefine an entire category of prohibited discrimination” (43 N.Y.3d at 371, 376). KeyCite lists McCabe as declining to extend Williams, Bennett and Albunio.

Where it stands. The line McCabe and Doe together draw is between how a claim is proved (standards of liability, burdens, what counts as opposition) and what the protected categories and covered actors are. McCabe expressly left open whether a plaintiff denied a benefit merely because unmarried, rather than because not married to a particular person, would state a claim (43 N.Y.3d at 377).

My view. Cite § 8-130 for standards and burdens, where Williams, Bennett, Albunio and Mihalik are squarely on point. Where the argument is that a category or a defendant is broader than the text, expect McCabe and Doe, and build the argument from the words of § 8-102 and § 8-107 first.

2. Does the four-person minimum apply to retaliation, accommodation and the rest?

The issue. The definition of “employer” in § 8-102 excludes employers with fewer than four persons in their employ, but only “for purposes of” a list of provisions: subdivisions 1, 2, 3, 10, 11-a, 22, 23 and 32 of § 8-107, and paragraphs (a)(1) and (e) of subdivision 21, with gender-based harassment under subdivision 1 carved back in for every employer. Subdivision 7 (retaliation), 15 (disability accommodation), 24 (credit history), 25 (salary history), 28 (cooperative dialogue) and 6 (aiding and abetting) are not on the list.

For applying the provisions to smaller employers. The Council wrote a specific list, and § 8-130(b) requires exceptions and exemptions to be “construed narrowly in order to maximize deterrence of discriminatory conduct.” Subdivisions 6 and 7 are addressed to “any person,” not to employers.

Against. At least one practice treatise describes the cooperative dialogue duty as applying to employers with four or more (New York Practice Series, Employment Law in New York § 4:166, as it appears in Westlaw search results; I have not relied on it beyond that), and an accommodation duty imposed on a two-person business when the core discrimination ban does not reach it is an odd structure.

Where it stands. I found no decision deciding it. Four Westlaw searches of all State and federal cases (September 27, 2026), including every case pairing “fewer than four,” “less than four” or “four persons” with the City law in the same paragraph (36 results), turned up no decision that considered whether the four-person rule reaches retaliation, accommodation or the other provisions left off the list. The appellate decisions applying the rule that I read involved discrimination claims. Many decisions, especially federal ones, paraphrase the rule as if it applied to the whole law, but without addressing the list; that paraphrase is the employer’s best practical argument, not a holding. A worker at a very small employer also keeps the State Human Rights Law, which covers every employer in the State (Exec. Law § 292(5)).

My view. The text favors coverage, most clearly for retaliation and aiding and abetting, which reach “any person.” For the employer-directed duties the argument is good but untested. Plead it where the facts support it and say plainly that no court has decided it.

3. Is McDonnell Douglas still the framework?

The issue. Bennett held that where the employer has offered nondiscriminatory reasons, a court should ordinarily skip the prima facie case and ask whether the employer has shown that “no jury could find defendant liable under any of the evidentiary routes,” including mixed motive (92 A.D.3d at 41, 45). It also held that evidence of pretext should in almost every case defeat summary judgment (92 A.D.3d at 44).

The uncertainty. The Second Circuit said in 2013 that “it is unclear whether, and to what extent, the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims,” noting that a later First Department decision read Bennett narrowly (Mihalik, 715 F.3d at 110 n.8). It found the question less important because the City law simplified the inquiry: the employer gets summary judgment on its nondiscriminatory reasons only if the record shows as a matter of law that discrimination played no role (id.). Federal courts also apply Rule 56, not State summary judgment practice (715 F.3d at 111–12).

Where it stands. Bennett is endorsed by name in § 8-130(c), which is the strongest argument that its approach is now the statute’s. KeyCite lists Mihalik as recognizing a limitation of Bennett’s holding and McCabe as declining to extend it. I have not cited the First Department decision Mihalik relied on because I have not read it for this page.

My view. Brief every City law summary judgment motion under Bennett’s “any evidentiary route” test and the § 8-130(c) endorsement, and treat McDonnell Douglas as at most one route among several. In federal court, frame the same argument as Mihalik does: the question is whether the record shows discrimination played no role.

4. What does constructive discharge require under the City law?

The issue. The traditional test asks whether the employer “deliberately created working conditions so intolerable” that a reasonable person would feel compelled to resign. Whether liberal construction changes that is open.

The authority. The Second Department said in 2020 that “the appellate courts have not yet explored the contours of a constructive discharge claim using the enhanced liberal construction analysis of the City Human Rights Law,” and applied the traditional test on the record before it (Golston-Green, 184 A.D.3d at 44–45 & n.4). In 2026 the First Department applied the same “deliberately created working conditions so intolerable, difficult or unpleasant” standard to dismiss a constructive discharge claim at the pleading stage, in a case that included City law claims (Cronemeyer, 248 A.D.3d at 432). The decision is a short memorandum; it does not say which law the constructive discharge claim was brought under, and nothing in it indicates that a City-specific standard was argued.

For a different City test. The City law does not require a “materially adverse” action and asks whether the employee was treated less well (Golston-Green, 184 A.D.3d at 38). A resignation compelled by treatment that is actionable under that standard is arguably a discharge in the City law’s terms without the added “deliberately” and “intolerable” elements.

Against. Constructive discharge is a way of proving that a resignation was a firing, which is a question of fact about the employment relationship, not about the standard of discrimination. Cronemeyer shows the First Department still stating the traditional test, though without addressing the question.

Where it stands. Westlaw search, Appellate Division, decisions after May 13, 2020: “constructive discharge” /p (“City Human Rights Law” OR “City HRL” OR NYCHRL) /p (liberal! OR “treated less well” OR Golston-Green OR “intolerable”). One result: Cronemeyer.

My view. Plead constructive discharge under the traditional test and plead the underlying less-well treatment as its own claim, so the case does not depend on which test applies. The argument for a City-specific standard is worth preserving in the Second Department, where Golston-Green invites it, and should be raised expressly in the First, since Cronemeyer did not decide it.

5. How far do the 2024 anti-shortening provisions reach?

The issue. Local Law 62 of 2024, effective May 11, 2024, added §§ 8-109(e-1) and 8-502(d-1). Any provision “of an agreement involving an employer, employment agency, or agent thereof pertaining to terms of employment that purports to shorten” the period to sue is “unenforceable and void as against public policy” (§ 8-502(d-1)); § 8-109(e-1) does the same for the Commission filing periods. Two questions follow: whether the provisions void a shortening clause in an agreement signed before May 11, 2024, and whether they reach a deadline in an arbitration agreement.

For a broad reach. The text voids the provision, not the agreement’s formation; it speaks in the present tense of what is “unenforceable,” which suggests it applies when enforcement is sought. An arbitration agreement is an “agreement involving an employer” pertaining to terms of employment.

Against. Statutes are generally not applied retroactively to impair existing contract rights without a clear statement. Subdivision d-1 addresses “the periods in which a civil action may be commenced pursuant to subdivision d,” and a deadline to demand arbitration is arguably not a period for commencing a civil action. And to the extent an arbitration agreement is governed by the Federal Arbitration Act, a local law singling out arbitration terms faces a preemption argument.

Where it stands. I found no decision construing either provision. Westlaw searches (All State & Federal cases, September 27, 2026): “8-502(d-1)” OR “8-502 (d-1)” OR “8-109(e-1)” OR “8-109 (e-1)” OR (“8-502” /p shorten! /p “limitations period” /p agreement), no results; and a broader search for City law decisions after May 10, 2024 discussing contractually shortened limitations periods, one result, not on point.

My view. For an agreement entered into on or after May 11, 2024, a shortening clause in a court-litigation agreement is void, and I would say so without qualification. For pre-2024 agreements, the prospective-enforcement reading is the better one but should be presented as an argument. For arbitration deadlines, I would argue d-1 and the arbitral forum’s own rules together, and expect the preemption fight.

6. Transit workers: is there a split on Public Authorities Law § 1266(8)?

The issue. Section 1266(8) provides that local laws “conflicting with this title or any rule or regulation of the authority or its subsidiaries” shall not apply “to the activities or operations of the authority.” The MTA and the Transit Authority have argued that it exempts them from the City Human Rights Law.

The authority. The Court of Appeals held in 1995 that the Transit Authority is subject to the City Commission’s jurisdiction over employment discrimination, reasoning that compliance with the ban on employment discrimination would not interfere with its function, “particularly where employment practices are tangential to the Transit Authority’s mission” (Matter of Levy, 85 N.Y.2d at 745). The Second Department held in 2008 that § 1266(8) reaches only conflicting local laws, rejected the Transit Authority’s § 1266(8) defense, and reinstated a City law retaliation complaint that Supreme Court had dismissed (Tang, 55 A.D.3d at 720–21). The First Department reached the same conclusion in 2020, relying on Levy and Tang (Center for Independence of the Disabled, 184 A.D.3d at 207–08).

Where it stands. There is no split between the Departments: both hold the Transit Authority subject to the City law, and the First Department has held the same for the MTA; the Second Department has not addressed the MTA itself. What remains open: I found no Appellate Division decision applying § 1266(8) to an employment claim against the Long Island Rail Road, Metro-North or another MTA subsidiary, and the Court of Appeals has not construed § 1266(8) itself for City law purposes, though Levy observed that “there is no provision in the Public Authorities Law which appears to preclude” the Commission’s jurisdiction over the Transit Authority (85 N.Y.2d at 745). In Levy the Transit Authority did not argue that compliance would interfere with its function (id.).

My view. For the Transit Authority, treat coverage as settled at the appellate level in both Departments; for the MTA, as settled in the First Department and very likely to be followed in the Second. For the subsidiaries, the statutory language and the reasoning of Tang and Center for Independence of the Disabled apply in the same way, and I would plead the City law claim and expect the argument, not a different rule.