HRT-10-16-00019-P Discrimination Based on Relationship or Association

3/9/16 N.Y. St. Reg. HRT-10-16-00019-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 10

March 09, 2016

RULE MAKING ACTIVITIES

DIVISION OF HUMAN RIGHTS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HRT-10-16-00019-P

Discrimination Based on Relationship or Association

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of section 466.14 to Title 9 NYCRR.

Statutory authority:

Executive Law, section 295.5

Subject:

Discrimination based on relationship or association.

Purpose:

To clarify it is unlawful to discriminate because of relationship or association with members of a protected class.

Text of proposed rule:

A new Section 466.14 is added to read as follows:

466.14 Discrimination based on an individual’s relationship or association with members of a protected class.

(a) Statutory Authority. Pursuant to N.Y. Executive Law § 295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, article 15 (Human Rights Law).

(b) The Human Rights Law Section 297.1 permits “[a]ny person claiming to be aggrieved by an unlawful discriminatory practice” to file a verified complaint.

(c)(1) Where the term “unlawful discriminatory practice” is used in the Human Rights Law, it shall be construed to prohibit discrimination against an individual because of that individual’s known relationship or association with a member or members of a protected category covered under the relevant provisions of the Human Rights Law.

(2) To prove a claim of discrimination based on a known relationship or association, complainants must establish they are aggrieved by an unlawful discriminatory practice by showing they have been be subjected to an adverse action as specified in relevant provisions of the Human Rights Law because of their known relationship or association with a member or members of a protected category covered under the relevant provisions of the Human Rights Law.

Text of proposed rule and any required statements and analyses may be obtained from:

Edith Allen, Administrative Aide, Division of Human Rights, One Fordham Plaza, 4th Floor, Bronx, New York 10458, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Caroline Downey, General Counsel, Division of Human Rights, One Fordham Plaza, 4th Floor, Bronx, New York 10458, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

Statutory authority: Pursuant to Executive Law, section 295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the Executive Law, article 15 (Human Rights Law).

Legislative objectives: To clarify that it is an unlawful discriminatory practice under the Human Rights Law to discriminate against individuals because of their relationship or association with members of a protected class.

Needs and benefits: There is long-standing precedent supporting anti-discrimination protection under the Human Rights Law (HRL) to individuals who are discriminated against because of their association with members of a protected class. For example, in Dunn v. Fishbein, 123 AD2d 659 (2nd Dept. 1986), where a landlord denied an apartment to two roommates, one white and one black, the court held that in order to have standing under the HRL, the prospective tenants “must show that they have suffered an injury and that they fall within a zone of interest which the statute protects.” Id at 660. In reversing the lower court’s dismissal, the Court stated that a jury could find that the refusal to rent to the roommates was motivated by racial bias and that the fact that one of the roommates was white was irrelevant.

This is similar to protection that has been found under Title VII of the Civil Rights Act of 1964. In 2011, the Supreme Court of the United States unanimously held that a person who has been retaliated against by his employer because of his relationship with another person has standing as a “person aggrieved” under Title VII. In Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), the plaintiff filed a retaliation claim, alleging he was terminated because his fiancée, who worked for same employer, filed a sex discrimination charge with the Equal Employment Opportunity Commission. The Supreme Court held the plaintiff had standing to sue as a person aggrieved under Title VII, which permits “a civil action [to] be brought. . . by the person claiming to be aggrieved” 42 USC § 2000e-5(f)(1). The Supreme Court found that this provision incorporates a “zone of interest” test and thus “enable[s] suit by any plaintiff with an interest arguably sought to be protected by the statute.” The HRL similarly provides that “[a]ny person claiming to be aggrieved by an unlawful discriminatory practice may. . . sign and file with the division a verified complaint.” § 297(1). The “zone of interest” analysis applied by the Supreme Court in Title VII cases is equally applicable to claims brought pursuant to the HRL, permitting association discrimination claims for all bases covered under the HRL.

Over a quarter century after Title VII, the Americans with Disabilities Act (ADA) was enacted. This law specifically prohibits discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association” 42 USC § 12112(b)(4). While this provision recognizes the law as it has developed with respect to association, it clearly does not diminish the association protections found in Title VII, nor can it have impact on the well-developed law concerning association protections of the HRL. Even though the disability discrimination protections of the HRL long predate the ADA, some lower courts have dismissed claims alleging discrimination based on association with a person with a disability under the HRL because the HRL lacks the explicit association language found in the ADA. This regulation will clarify this specific situation, and make it clear to all New Yorkers that they have the right to rent or buy residential property, land or commercial space, to gain and retain employment, and to patronize all public accommodations regardless of the race, color, creed, national origin, sexual orientation, gender identity, disability or other protected characteristic of their family members, associates or clients.

It is important that all New Yorkers know, for example, that a mother seeking housing may not be denied an apartment because of the race or disability of her child. A renter may not be evicted or denied equal terms because of the race, creed, national origin, sexual orientation or gender identity of the renter’s friends who visit the apartment. An individual who provides services to persons in need may not be discriminated against because of the creed or national origin of his or her clients, with regard to renting a residential apartment, or renting office space for providing those services. A medical practice providing health care services specializing in HIV/AIDS-related medical conditions cannot be denied commercial space, or given unequal terms or condition of a lease, because of the nature of the clients’ disabilities. These regulations will apply to areas protected under the HRL, including housing, public accommodations, employment, access to educational institutions and credit.

Costs:

a. costs to regulated parties for the implementation of and continuing compliance with the rule: No new costs are anticipated for regulated parties. The implementation of this rule clarifies the practice and policy of the State Division of Human Rights with regard to complaints of discrimination based on association.

b. costs to the agency, the state and local governments for the implementation and continuation of the rule: It is anticipated that any costs to the State Division of Human Rights due to increased filings because of increased awareness of the protections described, and for continued implementation of the rule, will be minimal and capable of being absorbed within existing Division staff and resources. No new costs are anticipated for state and local governments.

c. the information, including the source(s) of such information and the methodology upon which the cost analysis is based: The State Division of Human Rights has historically received and processed complaints alleging discrimination based on association.

Local government mandates: None.

Paperwork: None.

Duplication: This proposed rule does not duplicate existing state requirements. The proposed rule duplicates existing federal requirements pursuant to federal anti-discrimination statutes.

Alternatives: No significant alternatives were considered.

Federal standards: Federal law protects discrimination based on relationship or association.

Compliance schedule: This regulation does not impose any new compliance requirements or create new penalties for non-compliance.

Regulatory Flexibility Analysis

A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. The proposed rule clarifies the Division’s existing practice and policy with regard to complaints under the Human Rights Law that allege discrimination against individuals because of their relationship or association with members of a protected class and does not impose any new requirements.

Rural Area Flexibility Analysis

A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. The proposed rule clarifies the Division’s existing practice and policy with regard to complaints under the Human Rights Law that allege discrimination against individuals because of their relationship or association with members of a protected class and does not impose any new requirements.

Job Impact Statement

A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. The proposed rule will have a positive impact on jobs and employment opportunities because it prohibits discrimination in employment against individuals because of their relationship or association with members of a protected class.