In Bennett v. Time Warner Cable, 2016 NY Slip Op 03103 (App. Div. 1st Dept. April 26, 2016), the court affirmed the lower court’s denial of defendant’s motion to dismiss plaintiff’s claims under the New York State and City Human Rights Laws for age discrimination based on a theory of “disparate impact.”
The Second Circuit, in Dist. Council 37 v. NYC Dept. of Parks & Recreation, 113 F.3d 347, 351 (2d Cir. 1997), explained the difference between “disparate treatment” and “disparate impact” claims:
The essence of a disparate treatment claim is that the employer intentionally discriminated against a member of a protected class. In contrast, “[d]isparate impact … results from the use of employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on a protected group and cannot be justified by business necessity.
From the Bennett decision:
Plaintiffs allege, among other things, that they were general foremen in their 50’s and 60’s, and that defendant’s decision to eliminate the general foreman position disproportionately affected them in comparison to younger workers. Crediting their allegations for purposes of this motion to dismiss, plaintiffs have adequately pleaded claims for age discrimination based on a disparate impact theory under the State and City Human Rights Laws. … This Court has previously recognized that disparate impact claims alleging age discrimination are cognizable under the State Human Rights Law[.] Furthermore, this Court has held that provisions of the City Human Rights Law must be construed broadly in favor of plaintiffs alleging discrimination and assessed under more liberal standards, going beyond the counterpart state or federal civil rights laws.
The court explicitly rejected defendant’s reliance on the Third Department’s decision in Bohlke v General Elec. Co., 293 AD2d 198, which did not involve a claim under the NYC Human Rights law and “therefore would not be dispositive of plaintiff’s city law claim.”