Veronika Chauca v. Jamil Abraham

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 113
Veronika Chauca,
Appellant,
v.
Jamil Abraham, et al.,
Respondents.

Stephen Bergstein, for appellant.
Arthur H. Forman, for respondents.
Anti-Discrimination Center, Inc.; City of New York;
National Employment Lawyers Association/New York (NELA/NY), amici
curiae.

GARCIA, J.:
The New York City Human Rights Law makes clear that
punitive damages are available for violations of the statute, but
does not specify a standard for when such damages should be
awarded. The Second Circuit has, by certified question, asked us
to determine the applicable standard. We conclude that,

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consistent with the New York City Council's directive to construe
the New York City Human Rights Law liberally, the common law
standard as articulated in Home Insurance Co. v American Home
Prods. Corp. (75 NY2d 196, 203-204 [1990]) applies. Accordingly,
a plaintiff is entitled to punitive damages where the wrongdoer's
actions amount to willful or wanton negligence, or recklessness,
or where there is "a conscious disregard of the rights of others
or conduct so reckless as to amount to such disregard" (see Home
Ins. Co. v Am. Home Prods. Corp., 75 NY2d 196, 203-204 [1990]).
I.
Plaintiff, a physical therapy aide, sued her former
employer and two supervisory employees for sex and pregnancy
discrimination under Title VII (42 USC §§ 2000e [k], 2000e-2
[a]), the Family Medical Leave Act (29 USC § 2601), the New York
State Human Rights Law (Executive Law § 296 [1] [a]), and the New
York City Human Rights Law (NYC Admin Code § 8-107 [1] [a])
(NYCHRL) in the United States District Court for the Eastern
District of New York. At trial, plaintiff's counsel requested a
jury instruction on punitive damages under the NYCHRL. In
considering the request, the court applied to the NYCHRL the
standard for punitive damages found in Title VII, namely, whether
plaintiff had submitted evidence that her employer had
intentionally discriminated against her with malice or reckless
indifference to her protected rights, and denied the instruction.
The court stated, "[t]here is nothing here that supports punitive

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damages . . . . There's no showing of malice, reckless
indifference, that there was an intent to violate the law. They
may have violated the law, which is what you are going to try to
prove, but there is certainly no evidence of intent." The jury
found defendants liable for pregnancy discrimination and awarded
plaintiff $10,500 in compensatory damages and $50,000 in pain and
suffering.
Plaintiff appealed, arguing that the district court
erred in importing the Title VII standard. After noting that the
NYCHRL "does not articulate a standard for a finding of employer
or employee liability for punitive damages," the Second Circuit
acknowledged that the passage of the 2005 Local Civil Rights
Restoration Act (NYC Admin Code § 8-130 [a] [Restoration Act])
and subsequent related amendments, calling for a liberal
construction of all provisions of the NYCHRL in all
circumstances, called into question the Second Circuit's 2001
holding in Farias v Instructional Systems, Inc. (259 F3d 91 [2d
Cir 2001]) that Title VII's standard for punitive damages applies
to the NYCHRL (Chauca v Abraham, 841 F3d 86, 91-92 [2d Cir
2016]). The Second Circuit noted that the Restoration Act
"otherwise provides no specific guidance" regarding how to
interpret the NYCHRL where the statute is silent as to the
applicable standard (id. at 88). Accordingly, the Second Circuit
certified the following question: "What is the standard for
finding a defendant liable for punitive damages under the New

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York City Human Rights Law?"
II.
The NYCHRL prohibits an employer from "refus[ing] to
hire" or "discharg[ing] from employment" anyone because of their
gender.1 The NYCHRL provides for compensatory and punitive
damages and other remedies against employers and employees found
directly or vicariously liable for discrimination, a provision
the City Council included in the NYCHRL in 1991 (NYC Admin Code §
8-502 [a]). Employers exposed to a punitive damages charge can
mitigate punitive damages based on vicarious liability where they
can prove the existence of certain policies established to deter
discrimination (see id. § 8-107 [13] [d] - [e]). Despite the
clear intention to make punitive damages available, there is no
provision in the NYCHRL setting a standard for imposing them. In
light of this silence in the statute, we must now determine what
standard applies for awarding punitive damages under the NYCHRL.
A.
The "starting point in any case of interpretation must
always be the language itself, giving effect to the plain meaning
thereof" (Matter of Shannon, 25 NY3d 345, 351 [2015]). It is a
well-established principle of statutory construction that words
of technical or special meaning are used by the legislature, "not
loosely, but with regard for their established legal

1
Discrimination on the basis of pregnancy is a form of
gender discrimination (see Elaine W. v Joint Diseases N. Gen.
Hosp., Inc., 81 NY2d 211 [1993]).

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significance, and in construing a statute a technical meaning
should be given to technical words, unless a contrary meaning is
unmistakably intended" (People v Wainwright, 237 NY 407, 412
[1924]; see McKinney's Cons Laws of NY, Book 1 Statutes § 233
["when a word having an established meaning at common law is used
in a statute, the common law meaning is generally followed"]).
"Punitive damages" -- as used in section 8-502 -- is a
legal term of art that has meaning under the New York common law.
Punitive damages are intended not only to "punish the tortfeasor"
but also to "deter future reprehensible conduct" (Ross v Louise
Wise Servs., Inc., 8 NY3d 478, 489 [2007]; Hartford Acc. & Indem.
Co. v Village of Hempstead, 48 NY2d 218, 226 [1979]). In our
1990 decision in Home Insurance Co., we articulated the punitive
damages standard as "essentially . . . conduct having a high
degree of moral culpability which manifests a conscious disregard
of the rights of others or conduct so reckless as to amount to
such disregard" (75 NY2d at 203-204 [citations and internal
quotation marks omitted]).
Plaintiff, relying almost exclusively on the
legislative intent of the NYCHRL and the Restoration Act, argues
that she should be entitled to a punitive damages charge upon any
showing of liability. Under plaintiff's approach, any
discrimination case that goes to a jury would be accompanied by a
punitive damages charge without any guidance as to when to award
such damages. In plaintiff's view, punitive damages should be

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available in any situation where compensatory damages are
available; the required showing of entitlement to either form of
damages would be identical. The dissent agrees, and argues that
the Restoration Act's liberal construction principles mandate a
holding that "a punitive damages charge is automatic on a finding
of liability" (dissenting op at 7).
We reject that approach. Punitive damages differ
conceptually from compensatory damages and are intended to
address "gross misbehavior" or conduct that "wilfully and
wantonly causes hurt to another" (Thoreson v Penthouse Int'l, 80
NY2d 490, 497 [1992]). Indeed, this Court has noted that "[n]ot
only do [punitive damages] differ in purpose and nature from
compensatory damages, but they may only be awarded for
exceptional misconduct which transgresses mere negligence"
(Sharapata v Town of Islip, 56 NY2d 332, 335 [1982]). Punitive
damages represent punishment for wrongful conduct that goes
beyond mere negligence and are warranted only where aggravating
factors demonstrate an additional level of wrongful conduct (see
Home Ins. Co., 75 NY2d at 203-204). Accordingly, there must be
some heightened standard for such an award.
Plaintiff's assertion that the mitigation provisions
discussed in section 8-107 (13) support the argument that
punitive damages are available to any employment discrimination
plaintiff, without the need to show a heightened level of
culpability, lacks merit. This section provides a way for an

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employer, when faced with vicarious liability, to mitigate
punitive damages, where they are otherwise warranted, if certain
factors are established. Moreover, as the Second Circuit noted,
that section applies only to employers' vicarious liability once
the punitive damages standard has been met and cannot be read to
address the standard itself (see Chauca, 841 F3d at 92 n 3).
Nothing in that provision requires a punitive damages charge
whenever liability, vicarious or direct, is demonstrated.
Indeed, the dissent's assertion that a punitive damages charge is
"automatic" is not a "reasonably possible" interpretation of the
statute (dissenting op at 13).
B.
Defendants contend that the Title VII standard for
punitive damages, employed by the Second Circuit in Farias,
should apply (see 259 F3d at 102). We reject this approach as
contrary to the intent of the Council.
In Farias, the Second Circuit held that a plaintiff
must show that a defendant engaged in intentional discrimination
with malice or reckless indifference to a protected right in
order to obtain punitive damages under the NYCHRL (id. at 100;
see also Koldstadt v Am. Dental Ass'n, 527 US 526, 529-30
[1999]). The Title VII standard requires "intentional
discrimination . . . with malice or with reckless indifference to
the . . . protected rights of an aggrieved individual" and the
Supreme Court has specified that "the terms 'malice' or 'reckless

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indifference' pertain to the employer's knowledge that it may be
acting in violation of federal law, not its awareness that it is
engaging in discrimination" (Kolstad, 527 US at 529-30).
However, in 2005, subsequent to Farias, the City
Council passed the Restoration Act, amending the New York City
Administrative Code to ensure that "[t]he provisions of [the
NYCHRL] shall be construed liberally . . . regardless of whether
federal or New York State civil and human rights laws . . . have
been so construed" (NYC Admin Code § 8-130). Expressing concern
that the NYCHRL was being too strictly construed, the amendment
established that similarly worded state or federal statutes may
be used as interpretive aids only to the extent that the
counterpart provisions are viewed "as a floor below which the
City's Human Rights Law cannot fall, rather than a ceiling above
which the local law cannot rise," and only to the extent that
those state or federal law decisions may provide guidance as to
the "uniquely broad and remedial purposes of the local law"
(Local Law No. 85 [2005] of City of New York §§ 1, 7). In a
report on the amendments (see 2005 NYC Legislative Annual, p.
537), the Committee on General Welfare rejected prior reasoning
by this Court that the City Council "would need to amend the City
HRL to specifically depart from a federal doctrine if it wanted
to do so" (McGrath v Toys "R" Us, Inc., 3 NY3d 421, 423 [2004]).
As a result, this Court has acknowledged that all provisions of
the NYCHRL must be construed "broadly in favor of discrimination

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plaintiffs, to the extent that such a construction is reasonably
possible" (Albunio v City of NY, 16 NY3d 472, 477-478 [2011]).
In 2016, the City Council again amended the
construction provision of the NYCHRL to provide additional
guidance, identifying cases, including Albunio, that had
"correctly understood and analyzed the liberal construction
requirement . . . and that have developed legal doctrines
accordingly that reflect the broad and remedial purpose of this
title" (NYC Admin Code § 8-130 [c]). The Council identified
these cases in order to, among other things, "illustrate best
practices when engaging in the required analysis" and to "endorse
the legal doctrines where they were developed pursuant to liberal
construction analyses" (id.).
In contrast to the approach in Kolstad, the standard
articulated in Home Insurance requires neither a showing of
malice or awareness of the violation of a protected right,
representing the lowest threshold, and the least stringent form,
for the state of mind required to impose punitive damages. By
implementing a lower degree of culpability and eschewing the
knowledge requirement, applying this standard adheres to the City
Council's liberal construction mandate while remaining consistent
with the language of the statute (see NYC Admin Code § 8-502
[a]).2

2
This holding does not affect the common law standard for
punitive damages in any context beyond the NYCHRL.

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Moreover, NYCHRL violations, by their very nature,
inflict serious harm "to both the persons directly involved and
the social fabric of the city as a whole" (Rep of Comm on Gen
Welfare, Local Law No. 85 [2005], 2005 NY City Legis Ann, at
537). The standard for punitive damages articulated in Home
Insurance, while requiring an appropriate showing of heightened
culpability for punitive damages consistent with the language of
the provision at issue, is nevertheless properly reflective of
the serious and destructive nature of the underlying
discriminatory conduct and the goal of deterring "future
reprehensible conduct" (Ross, 8 NY3d at 489). Furthermore,
subjecting NYCHRL defendants to punitive damages under this
standard encourages nondiscriminatory behavior and the
development and application of appropriate employment criteria.
In sum, this approach is the most liberal construction of the
statute that is "reasonably possible" and furthers the purpose of
the NYCHRL.
IV.
We hold, therefore, that the standard for determining
punitive damages under the NYCHRL is whether the wrongdoer has
engaged in discrimination with wilful or wanton negligence, or
recklessness, or a "conscious disregard of the rights of others
or conduct so reckless as to amount to such disregard" (see Home

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Ins. Co., 75 NY2d at 203-04.3
Accordingly, the certified question should be answered
in accordance with this opinion.

3
As noted earlier, the reference to "rights" here does not
impose a requirement that the wrongdoer know (s)he is violating
the law.

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Chauca v Abraham
No. 113

WILSON, J.(dissenting):

I agree with my colleagues' conclusion that the Title
VII standard for punitive damages does not govern discrimination
cases brought under the New York City Human Rights Law (NYCHRL).
We part ways, however, on how the New York City Council chose to
supplant it. I do not agree that the Council adopted New York's
common law standard, which is not mentioned anywhere in the
NYCHRL or its legislative history. Instead, I agree with Ms.
Chauca that the City Council amended the NYCHRL to entitle a
plaintiff to a punitive damages charge whenever liability is
proved, unless an employer has adopted and fully implemented the
antidiscrimination programs, policies, and procedures promulgated
by the Commission on Human Rights, as an augmentation to
compensatory damages, and would answer the certified question
accordingly.

I.
For the better part of a century, New York City has
demonstrated its pioneering commitment to human rights through
repeated revisions to its Human Rights Law. The City Council's
Committee on Civil Rights recently described the NYCHRL as "one
of the most expansive and comprehensive human rights laws in the

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nation" (Report of the Committee on Civil Rights on Local Law 35
of 2016 [2016 Report]).
In the 1991 revisions, which effected a complete
overhaul of that law, the City Council made clear that the NYCHRL
not only served an important humanitarian objective, but also was
designed to further nearly every traditional governmental
purpose. Those revisions reemphasized the New York City
Council's earlier finding that 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 and antagonistic to each other because of their actual
and perceived differences, including those based on . . . gender"
(NYC Admin Code § 8-101). The revisions also focused new
attention on the scourge of systemic discrimination, which "poses
a substantial threat to, and inflicts significant injury upon,
the city that is economic, social and moral in character" as well
as "distinct from the injury sustained by individuals as an
incident of such discrimination" (id. § 8-401). The Council
found that systemic discrimination, including systemic employment
discrimination, causes economic injury to New York that "severely
diminishes its capacity to meet the needs of those persons living
and working in, and visiting, the city" (id.). Moreover, it
found that the social and moral consequences "polarize[] the
city's communities, demoralize[] its inhabitants and create[]
disrespect for the law", thereby frustrating "the city's efforts

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to foster mutual respect and tolerance among its inhabitants and
to promote a safe and secure environment" (id.).
To better combat those ills, the 1991 revisions
supplemented the pre-existing administrative enforcement
mechanism. Under prior law, individuals could secure their own
redress and prevent further municipal injuries only by bringing a
complaint before the City Commission on Human Rights. Under the
revised law, both those individuals and the corporation counsel
were given the authority to institute a civil action without
recourse to the Commission (id. § 8-402; 8-502). As relevant
here, the NYCHRL now provides that "any person claiming to be
aggrieved by an unlawful discriminatory practice . . . shall have
a cause of action in any court of competent jurisdiction for
damages, including punitive damages, and for injunctive relief
and such other remedies as may be appropriate" (id. [emphasis
added]). The hope of then-Mayor Dinkins was that the creation of
a private right of action would "supplement the Commission's
enforcement efforts and ease a portion of its caseload burden"
(Statement of David Dinkins at the public hearing on local law
39, June 18, 1991 [Dinkins Statement]). The twin barrels of
Commission and private enforcement, were both designed to "ensure
discrimination plays no role in the public life of the City"
(id.). Achieving that goal requires ensuring that "a person can
be compensated for the damages she has suffered" and that
penalties "exert a strong deterrent effect" against "the harm

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. . . bias does to the social fabric of the city" (id.). In
addition to those and other substantive amendments, the 1991
revisions emphasized -- without materially amending -- the
requirement that the NYCHRL must "be construed liberally for the
accomplishment of the purposes thereof" (former NYC Admin Code §
8-130). The accompanying committee report directed our court and
others to pay "particular attention" to that obligation and found
it "imperative that restrictive interpretations of state or
federal . . . provisions are not imposed upon city law" (Report
of the Committee on General Welfare on Local Law 39 of 1991 [1991
Report]). Mayor Dinkins repeated that instruction in his signing
statement, which implored the judiciary to reject "restrictive
state and federal rulings" and to "take seriously the requirement
that this law be liberally and independently construed" (Dinkins
Statement). Only by following those instructions could the
courts give proper force to a human rights law that was, in the
words of the mayor who signed it, "the most progressive in the
nation" (id.).
Despite clear instructions, courts interpreting the
NYCHRL failed to construct it liberally and independently,
instead importing narrowing constructions of Title VII and the
Executive Law. In the Local Civil Rights Restoration Act of
2005, the City Council informed the courts that they had
construed the law "too narrowly to ensure protection of the civil
rights of all persons" covered by it (Local L 85 § 1 [2005]). It

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repeated that the law must instead be construed "independently
from similar or identical provisions of New York state or federal
statutes" (id.). It augmented the construction provision of the
NYCHRL, section 8-130, to include that instruction and to further
distinguish the law for its "uniquely broad and remedial
purposes" (NYC Admin Code § 8-130). Finally, it amended certain
other sections to supersede specific cases that had strayed from
those purposes. The clear thrust of the Restoration Act is that
courts should interpret the NYCHRL in the manner that best
furthers its goals of protecting aggrieved individuals and the
social fabric of New York City (see generally Report of the
Committee on General Welfare on Local Law 85 of 2005 [2005
Report]; Testimony of Craig Gurian of the Anti-Discrimination
Center Regarding Intro 22A [Gurian Testimony]).
Those reiterated admonishments proved only partially
effective. In 2016, finding that only "some judicial decisions
ha[d] correctly understood and analyzed the requirement of
section 8-130", the Council patiently fired a third salvo in its
fight to protect the NYCHRL from being subverted by the courts
(Local L 35 § 1 [2016]). The purpose of that year's revisions
was "to provide additional guidance for the development of an
independent body of jurisprudence for the New York [C]ity [H]uman
[R]ights [L]aw that is maximally protective of civil rights in
all circumstances" (id.). Consistent with that purpose, the
Council amended section 8-130 to direct courts toward three

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decisions that best exemplified the correct approach to
interpreting the law: Albunio v City of New York, Bennett v
Health Management Systems Inc., and Williams v New York City
Housing Authority (NYC Admin Code § 8-130 [c]; 16 NY3d 472
[2011]; 92 AD3d 29 [1st Dept 2011]; 61 AD3d 62 [1st Dept 2009]).
Those decisions make clear that, as we stated in Albunio, courts
must construe the NYCHRL "broadly in favor of discrimination
plaintiffs, to the extent such a construction is reasonably
possible" (16 NY3d at 477-478).

II.
The majority follows that interpretive guideline
partway, and I join the portion of its opinion that considers and
rejects Farias and the Title VII standard in the context of the
New York City Human Rights Law (cf. Farias v Instructional
Systems, Inc., 259 F3d 91 [2d Cir 2001]). However, the plain
language of section 8-502 and structural features of chapter 1,
coupled with the legislative history of the title, compel the
holding that the standard for finding a defendant liable for
punitive damages under the NYCHRL can be borrowed from neither
federal jurisprudence nor our common law.1 Instead, the revised

1
The majority chastises Ms. Chauca for relying "almost
exclusively on the legislative intent of the NYCHRL and the
Restoration Act" (majority op at 5). That mischaracterizes her
argument. Even if it did not, the statutory text directs courts
to model their NYCHRL analyses on Bennett, which held that "while
examining the specific language of statutory provisions is part
of our inquiry, we must also look to the underlying purpose and

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statute provides that a punitive damages charge is automatic on a
finding of liability, that those damages must be mitigated if
certain factors are established, and can be eliminated entirely
by adopting such policies, programs, and procedures as are
developed by the Commission on Human Rights. Granted, that
construction would make the NYCHRL the most progressive in the
nation.
Section 8-502 provides plaintiffs a cause of action
"for damages, including punitive damages, and for injunctive
relief and such other remedies as may be appropriate, unless such
person has filed a complaint [with the Commission or with the
State Division of Human Rights]" (NYC Admin Code § 8-502 [a]).
Facially, then, Ms. Chauca and any similarly aggrieved individual
is entitled to an award of punitive damages upon a showing of
liability. We "construe unambiguous language to give effect to
its plain meaning" (Zakrzewska v New School, 14 NY3d 469, 479
[2010]; see also majority op at 4-5 ["The 'starting point in any
case of interpretation must always be the language itself, giving
effect to the plain meaning thereof'"], quoting Matter of
Shannon, 25 NY3d 345, 351 [2015]).
Here, that plain meaning is further supported by
structural features of the NYCHRL. Section 8-107 (1) imposes

the statute's history as we are mindful that in the
interpretation of statute, the spirit and the purpose of the act
and the objects to be accomplished must be considered. The
legislative intent is the great and controlling principle" (92
AD3d at 35 n 2, quoting Matter of Meegan v Brown, 16 NY3d 395,
403 [2011]).

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liability directly on employers for their own discriminatory
conduct. Section 8-107 (13) (b) additionally imposes vicarious
liability for employment discrimination on employers in three
instances: where the offending employee exercised managerial or
supervisory responsibility, where the employer knew of the
offending employee's discriminatory conduct and either acquiesced
in such conduct or failed to take immediate and appropriate
corrective action, and where the employer should have known of
the offending employees' discriminatory conduct and failed to
exercise reasonable diligence to prevent it (NYC Admin Code § 8-
107 [13] [b] [1]-[3]). In the first two instances, an employer's
demonstration of certain factors detailed in subsection (13) (d)
"shall be considered in mitigation of the amount of civil
penalties to be imposed by the commission . . . or in mitigation
of civil penalties or punitive damages which may be imposed
pursuant to chapter four or five"; only in the last instance can
the demonstration of those factors create an actual shield to
liability (id. § 8-107 [13] [e]; see also Zakrzewska, 14 NY3d at
479-480). In all instances, were an employer to adopt and
implement fully the best practices for preventing and detecting
discrimination as promulgated by the Commission, the employer
would be immune from punitive damages (NYC Admin Code § 8-107
[13] [f]).2
2
Recognizing the strict aspects of that regime, the City Council
noted that the new scheme "would make the City's law unique
among civil rights laws in that the standards are designed not
only to deter discriminatory conduct by holding employers

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That interrelated set of provisions demonstrates the
Council contemplated precisely what the plain language of section
8-502 calls for: automatically charging punitive damages to the
jury upon a finding of liability (unless the employer proved the
immunity provided by section 8-107 [13] [f]), regardless of
whether an employer or employee engaged in intentional
discrimination or discriminated with malice or reckless
indifference to the individual's rights.
Absent an automatic charge, the provisions' assumption
that punitive damages are available to be mitigated in any
employment discrimination case, but can only be eliminated in a
subset of cases, cannot make sense. In addition, using either
the federal or the majority's standard for awarding punitive
damages would reduce sections (13) (d), (e), and (f) to mere
surplusage. No employer who engaged in discrimination with
willful or wanton negligence, or recklessly, or displayed a
conscious disregard of the rights of others -- the test advocated
by the majority -- could hope to avail itself of those defenses.
The majority, like the Second Circuit, disputes the
relevance of these provisions because, "even if [Ms.] Chauca were
correct that the mitigation and avoidance provisions establish
the presumption that punitive damages are always available in

accountable but, of equal importance, they are designed to
provide employers with an incentive to implement policies and
procedures that reduce, and internally resolve, discrimination
claims . . . employers could mitigate their liability for civil
penalties or punitive damages or liability for the act of an
employee or agent" (1991 Report).

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cases of imputed liability, this would not answer the question of
the punitive damages standard for liability based on an
employer's own actions" (Chauca v Abraham, 841 F3d 86, 92 n 3
[2016]; see also majority op at 7 ["that section applies only to
employers' vicarious liability once the punitive damages standard
has been met and cannot be read to address the standard
itself"]). The consequence of their argument, however, is that
employers would be automatically subject to punitive damages when
they are merely vicariously liable for discrimination pursuant to
section 8-107 (13), but unlikely to face them when directly
liable under section 8-107 (1). That is, under the majority's
interpretation, if an employer had an outright policy of
discrimination, punitive damages would be assessed under the
higher common-law standard, but if the employer was only
vicariously liable for an employee's discriminatory conduct,
punitive damages would automatically attach, subject to possible
mitigation. That perverse result cannot have been the City
Council's intention.
Finally, as reflected in section 8-107 (13) (e), the
NYCHRL often treats punitive damages under chapter 5 in the same
breath as civil penalties under chapter 1. In the latter case,
the Commission may "vindicate the public interest" by imposing a
considerable fine without first proving the discrimination was
"willful, wanton or malicious" (id. § 8-126). If punitive
damages are to function as the private cause of action analogue

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to the Commission's civil penalties, they must be awarded,
similarly, without a showing of enhanced culpability.3 Thus,
structural features of the NYCHRL militate in favor of
interpreting it to require an automatic charge. Taken together
with the plain meaning of section 8-502, those features make that
interpretation more plausible than the majority's.
The interpretation is all the more plausible for
accomplishing the purposes of the NYCHRL in a familiar and easily
administrable way. The method is familiar because other statutes
that, like the NYCHRL, are intended to encourage civil actions by
private attorneys general automatically award damages in excess
of compensatory damages. For instance, treble damages are
automatic under the federal antitrust laws and the RICO Act,
simply on a finding of liability; indeed, intent is not an
element of civil violations of the antitrust laws, whereas it is
a necessary element of Title VII. The method is easily
administrable because it foregoes instructing a jury in the
niceties of the common-law standard for when punitive damages
should be awarded, and instead charges them only with calculating
an appropriate amount. The New York Pattern Jury Instructions,

3
Statements made by one of the law's co-sponsors at its signing
indicate chapter 5 was intended to allow private plaintiffs to
vindicate the public interest in the absence of robust
enforcement by the Commission (Statement by Stanley Michel at the
public hearing on local law 39, June 18, 1991 [describing the
private right of action as "the teeth" of the revisions and "so
important in these times when we don't have enough staff and the
problems with the budget in getting . . . the government to
enforce this legislation"]).

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which already bifurcate the guidance for determining whether
punitive damages should be awarded and the guidance for deciding
the amount of the award, contain a list of factors relevant to
that calculation. It would be a simple matter to charge each
jury, rather than only those that satisfy the majority's test, to
consider that list, the specific mitigating factors elaborated in
section 8-107 (13) (d), and the standard language regarding
proportionality to the harm, to compensatory damages, and to the
defendant's financial condition.4 In refusing to countenance the
efficacy of this approach, the majority must mean that it
disagrees with the policy judgement made by the City Council --
that it believes entitling additional successful plaintiffs to
awards that exceed their actual damages is a bad idea.
Although the preceding interpretation is in derogation
of the "well-established principle of statutory construction that
words of technical or special meaning are used by the
legislature, 'not loosely, but with regard for their established
legal significance,'" such departures are permitted when
"unmistakably intended" (majority op at 5, quoting People v
Wainwright, 237 NY 407, 412 [1924]; Wainwright, 237 NY at 412).
As the foregoing paragraphs demonstrate, in drafting the NYCHRL,
4
Indeed, juries' and appellate courts' recourse to those
standard factors may partially explain the City Council's
decision to authorize "punitive" rather treble or some hitherto
unknown form of damages. In other words, the City Council drew
on the body of law governing the amount of punitive damages, even
as it departed from the body governing the standard for awarding
those damages in the first place.

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the City Council -- whose purpose was the private vindication of
both individual and societal human rights -- unmistakably
intended for "punitive damages" to mean damages any jury may
consider awarding in excess of the award required to make a
plaintiff whole. Just as the presumption in favor of
interpreting "state and local civil rights statutes . . .
consistently with federal precedent" may yield to section 8-130,
so too can our general practice of following the established
common law meaning of a phrase (cf. McGrath v Toys "R" Us, Inc.,
3 NY3d 421, 429, superseded by statute as stated in Williams, 61
AD3d at 74).
Alternatively, one could understand the NYCHRL not as
departing from the common-law standard for when punitive damages
may be awarded, but as making a legislative finding that -- in
line with the "Restoration Act principle that discrimination
violations are per se 'serious injuries'" -- employment
discrimination per se satisfies that standard (Williams, 61 AD3d
at 77 [quoting the 2005 Report's finding that discriminatory acts
"cause serious injury, to both the persons directly involved and
the social fabric of the City as a whole, which will not be
tolerated"]). Home Insurance's description of the harms for
which punitive damages may be awarded tracks the outrage toward
discrimination and its injurious effects on society expressed in
sections 8-101 and 8-401 and in the revisions' repeated calls to
combat discriminatory conduct with law enforcement-like methods

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(see e.g. 75 NY2d 196, 203 [1990] [referring to punitive damages
as a "hybrid between a display of ethical indignation and the
imposition of a criminal fine"]). All NYCHRL suits are, like
punitive damages, "intended not only to 'punish the tortfeasor'
but also to 'deter future reprehensible conduct'" (see majority
op at 5, quoting Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489
[2007]). In drafting section 8-502, the City Council determined
juries should have a regular opportunity to consider whether to
punish and deter an act that "menace[s] the institutions and
foundation of a free democratic state": discriminating against an
employee because of, inter alia, her gender, race, or sexual
orientation (NYC Admin Code § 8-101). It has determined that
firing a woman because of her pregnancy is "reprehensible"
conduct "evidencing a high degree of moral culpability which
manifests a conscious disregard of the rights of others" (id.;
Home Ins. Co., 75 NY2d 196 at 203). The majority disagrees.

III.

I believe the above interpretation is compelled by the

statutory language and the legislative history. Suppose that I am

wrong.

As long as the preceding interpretation is even

"reasonably possible," it becomes incumbent on the courts to

adopt it over the one offered by the majority (Albunio, 16 NY3d

at 477-478; see NYC Admin Code § 8-130 [c]).

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As an initial matter, there is no reason to exempt an

interpretation imported from our common law from the same

scrutiny as one imported from federal or state statutes.

Although the 1991 and 2005 revisions had focused on preventing

the rote application of statutory law, the three cases cited in

the construction provision (as well as the 2016 legislative

history, which draws on them at some length) suggest that the

City Council sought to free the NYCHRL from the strictures of

statutory and decisional law. The 2016 committee report

described the most recent revisions as requiring courts to apply

the liberal construction provision "in every case and with

respect to every issue" and to understand that "legal doctrine

might need to be revised to comport with the requirements of § 8-

130" (2016 Report). "[T]here are no provisions of the law or

judge-made doctrines that stand outside the liberal construction

requirements" (id. [emphasis added]). The cases themselves

consider it "beyond dispute that the City HRL now explicitly

requires an independent liberal construction in all

circumstances" (Bennett, 92 AD3d at 35); section 8-130 is

intended to "allow independent development of the local law 'in

all its dimensions'" (Williams, 61 AD3d at 74, quoting Craig

Gurian, A Return to Eyes on the Prize: Litigating Under the

Restored New York City Human Rights Law, 33 Fordham Urb LJ 255,

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280 [2006] [describing the construction provision as "a

continuing shield and sword for the City Human Rights Law"]).5

The present case illustrates the merits of the City

Council's decision to slip the bonds of the common law. The idea

that there is a static common law is an even greater "fallacy"

than the idea that there is a "fixed body of 'federal law'" (see

Gurian Testimony). The common law may, like the state and

federal civil rights laws, be transformed over time. As the

discordant parade of increasingly severe cases cited by the

majority makes clear, our common-law standard has suffered

exactly that fate in the 27 years since Home Insurance (and may

now, in many instances, fall below the floor established by Title

VII) (see majority op at 6; see also Marinaccio v Town of

Clarence, 20 NY3d 506 [2013]; Dupree v Giugliano, 20 NY3d 921

[2012]; Ross, 8 NY3d 478) -- a fact the majority recognizes in

walling off its decision from today's punitive damages

jurisprudence (majority op at 10 n 2).6 Indeed, any invocation

5
Gurian's article, although separate from the legislative
history, is an "extensive analysis of the purposes of the Local
Civil Rights Restoration Act, written by one of the Act's
principal authors" that was used extensively in Williams and has
thus been ratified by section 8-130 (c) (Williams, 61 AD3d at 67
n 3, quoting Ochei v Coler/Goldwater Mem. Hosp., 450 F Supp 2d
275, 283 n 1 [SDNY 2006]).
6
Although the majority purports to reject the Title VII
standard for punitive damages in favor of New York's common law
standard, in footnote two, it cautions: "This holding does not
affect the common law standard for punitive damages in any
context beyond the NYCHRL." Unless footnote 2 is, like one's

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of "the" common law standard glosses over the reality that our

courts' application of punitive damages is "confusing" and "far

from uniform," varies -- perhaps with good reason -- by whether

an action sounds in tort or contract, and is, in short, hardly

standard (John Leventhal and Thomas Dickerson, Punitive Damages:

Public Wrong or Egregious Conduct? A Survey of New York Law, 76

Alb L Rev 961 [2013]; id. at 1008). Although the majority

employs the version of that standard extant at the time the 1991

revisions introduced punitive damages into the NYCHRL, a better

way to protect against the drafters' fear that the law would be

"automatically ratcheted down" would be to adopt the reading of

it supported in Part II (see Gurian Testimony).

That reading is the one that best serves the purpose of

the successive revisions to the NYCHRL, which must be construed

in the manner most favorable to discrimination plaintiffs (and,

thus, to the commonweal). As we have seen, that purpose is to be

"maximally protective of civil rights in all circumstances" by

"'meld[ing] the broadest vision of social justice with the

strongest law enforcement deterrent'" (Local L 35 § 1 [2016];

2016 Report, quoting Williams, 61 AD3d at 68]). If, as amici

appendix or wisdom teeth, vestigial and purposeless, it must mean
that the standard in the majority's opinion is not New York's
common law standard, but something different that the majority
does not wish to creep into the common law standard, and would
instead cabin to NYCHRL cases.

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explain, punitive damages are the only effective deterrent

because employers carry insurance against compensatory damages

and attorney's fees, but cannot obtain it for punitive damages as

a matter of New York's public policy, then only by automatically

imposing those damages with allowances for mitigating factors and

immunity for full compliance with Commission policies can the

NYCHRL achieve its "very specific vision" of "no tolerance for

discrimination in public life" (Home Ins. Co., 75 NY2d at 200;

2016 Report).

In fact, the 2005 Restoration Act modeled an amendment

to section 8-502 strikingly similar to the one Ms. Chauca

proposes today. Rejecting this Court's decision to authorize

attorney's fees only in the same narrow circumstances as the

federal statute, that Act updated the NYCHRL with a bespoke

definition of "prevailing" that awarded fees to considerably more

plaintiffs and thereby encouraged more rigorous enforcement (see

NYC Admin Code § 8-502 [g]; 2005 Report). That update, like all

of the substantive 2005 amendments, was meant to "illustrate"

desirable changes to the law (Williams, 61 AD3d at 74). The

expanded construction provision was intended, in the same vein,

to "obviate[e] the need for wholesale textual revision of the

myriad specific substantive provisions of the law" by the

legislature and "accelerate the process by which other doctrines

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inconsistent with the commands of [the] Restoration Act are

abandoned" (2005 Report; 2016 Report). Abandoning not only the

Title VII but also the common law standard for punitive damages

fulfills that goal as well as the law's express purpose.

Because the mandates of the NYCHRL are as clear as they

are uniquely broad and remedial, and because discrimination is "a

profound evil that New York City, as a matter of fundamental

public policy, seeks to eliminate," I would answer the certified

question consistent with this dissent (Bennett, 92 AD3d at 38).

It would be far better to have the City Council tell us we have

gone a bit too far than to have it admonish us a fourth time for

standing in the way of its efforts to end discrimination.

* * * * * * * * * * * * * * * * *

Following certification of a question by the United States Court
of Appeals for the Second Circuit and acceptance of the question
by this Court pursuant to section 500.27 of this Court's Rules of
Practice, and after hearing argument by counsel for the parties
and consideration of the briefs and the record submitted,
certified question answered in accordance with the opinion
herein. Opinion by Judge Garcia. Chief Judge DiFiore and Judges
Rivera, Stein, Fahey and Feinman concur. Judge Wilson dissents
in an opinion.

Decided November 20, 2017

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