NY Court of Appeals Clarifies Retaliation Standard Applicable to Housing Discrimination Claims

In Clifton Park Apartments, LLC v. New York State Division of Human Rights, No. 2, 2024 N.Y. Slip Op. 00793, 2024 WL 628036 (N.Y., Feb. 15, 2024), the New York Court of Appeals explained the “protected activity” and “adverse action” elements of a retaliation claim, in the context of a housing discrimination asserted under the New York State Human Rights Law.

In a nutshell, the court held:

The New York State Human Rights Law prohibits retaliation against those who make discrimination complaints or engage in other protected activity. We hold that a threat of litigation may constitute the requisite adverse action to support a retaliation claim and, therefore, respondent New York State Division of Human Rights (DHR) rationally concluded that this element had been established here. Remittal is necessary, however, because, as the parties agree, DHR improperly shifted the burden when analyzing whether respondent CityVision Services, Inc. (CityVision) had engaged in protected activity.

After holding that the “threat of retaliatory litigation” constituted an “adverse action,” the court assessed the “protected activity” element as follows:

Although we have never adopted the “reasonable belief” standard (see Matter of Mohawk Finishing Prods. v. State Div. of Human Rights, 57 N.Y.2d 892, 893–894, 456 N.Y.S.2d 749, 442 N.E.2d 1260 [1982]), and do not do so here because the parties agree that it applies, Appellate Division and DHR precedent requires CityVision and Renner to demonstrate that they were engaged in protected activity by showing that the initial complaint was based on a reasonable belief that Pine Ridge had engaged in unlawful housing discrimination (see Matter of New York State Off. of Mental Retardation & Dev. Disabilities [Staten Is. Dev. Ctr.] v. New York State Div. of Human Rights, 164 A.D.2d 208, 210, 563 N.Y.S.2d 286 [3d Dept. 1990]; State Div. of Human Rights v. GPA Dev. Corp., NYS DHR Case Nos. 10122321 and 10122322 [Feb. 1, 2012] [available at 2011 NYHUM LEXIS 16, *20]). DHR therefore erred by putting the burden on Pine Ridge and Pentkowski to show that the allegations advanced by CityVision in the initial DHR complaint were made in bad faith. As the Appellate Division concluded, DHR failed to “undertake any analysis as to whether CityVision reasonably believed that Pine Ridge” had engaged in a discriminatory practice during the test call (204 A.D.3d at 1360, 167 N.Y.S.3d 238). Because DHR failed to make any non-conclusory factual findings on this issue, remittal is necessary so that DHR may determine whether CityVision and Renner established the first element of the retaliation claim.

Based on this, the court held that the lower court’s judgment should be reversed, and the matter remitted to the Appellate Division with directions to remand to the Division of Human Rights for further proceedings.

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