In Doe v. The City of New York, No. 163629/2025, 2026 WL 2151428 (N.Y. Sup. Ct. July 17, 2026), the court, inter alia, held that the New York City Human Rights Law prohibits discriminatory conduct, even if a party has a non-discrimination policy.
From the decision:
Defendant argues that its nondiscrimination policy is documentary evidence that refutes the claims in the complaint. It is not clear if the nondiscrimination policy qualifies as documentary evidence pursuant to CPLR 3211(a)(1). However, even if the Court considers the nondiscrimination policy, it does not “utterly refute[]” the allegations in the complaint, “conclusively establishing a defense as a matter of law” (Goshen v Mut. Life Ins. Co., 98 NY2d 314, 326 [2002][“Turning to defendants’ CPLR 3211 (a) (1) motion to dismiss on the ground that the action is barred by documentary evidence, such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”.])
For instance, Defendant argues that the policies it appended to its moving papers totally refute Plaintiff’s allegations pertaining to the one-year HRT requirement and therefore the claim based on being denied accommodation due to not being on HRT for one-year must be dismissed. The NYCHRL prohibits practice and conduct. N.Y.C. Admin. Code § 8-107(5)(a)(describing conduct, not policy); § 8-107(13)(a)(stating an employer shall be liable for the discriminatory practice of its employee or agent)(emphasis added). Therefore, a policy alone is insufficient to defeat a claim under NYCHRL if the practice and conduct do not match the non-discrimination policy.
In addition, when the NYCHRL addresses the role of a written non-discrimination policy, such a policy serves as a mitigation measure, not a bar to a claim. Administrative Code of City of N.Y. § 8–107(13)(d)-(e). Establishment and compliance with a non-discrimination policy is addressed with respect to an employer being vicariously liable for the actions of employees. Zakrzewska v. New Sch., 14 N.Y.3d 469, 479–80, 928 N.E.2d 1035, 1039 (2010), holding modified by Police Benevolent Ass’n of City of New York, Inc. v. City of New York, 40 N.Y.3d 417, 224 N.E.3d 522 (2023)(“an employer’s antidiscrimination policies and procedures may be considered in mitigation of the amount of civil penalties or punitive damages recoverable in a civil action”)(internal quotations and citations omitted); Chauca v. Abraham, 30 N.Y.3d 325, 330, 89 N.E.3d 475, 478 (2017)(“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”). Had the NYCHRL meant to exempt discriminatory acts in the housing context on the basis of a non-discrimination policy, the legislature would have written that into the statute.
The court concluded that, therefore, to the extent defendant’s motion to dismiss is premised on the existence of a non-discrimination policy, defendant’s motion will be denied.