In employment discrimination cases, punitive damages play an unusually
prominent role. In many instances, the amount of punitive damages
awarded by juries exceeds the amount of compensatory damages. This is
particularly true under the New York City Human Rights Law, which is
among the most liberal anti-discrimination statutes in the United
Although a defendant may mitigate punitive damages by proving to a jury
that it had an effected anti-harassment policy which it effectively
communicated to plaintiffs, unlike federal law, there is no special
state of mind under the New York City Human Rights Law that must be
proved to hold defendant liable for punitive damages.
In Kolstad case, the Supreme Court construed the meaning of 42 USC
§1981a(b)(1) which provides that punitive damages may only be awarded
under Title VII when "respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference to
the federally protected rights of an aggrieved individual."
The City Law does not contain such a requirement. Instead, it sets out a
set of criteria which "shall be considered in mitigation of the amount
of...punitive damages which may be imposed..." 8-107(13)(e). Those criteria
are that the defendant:
- Established and complied with policies, programs and
procedures for the prevention and detection of unlawful discriminatory
practices by employees, agents and persons employed as independent
contractors, including but not limited to:
A meaningful and responsive procedure for investigating complaints of
discriminatory practices by employees, agents and persons employed as
independent contractors and for taking appropriate action against those
persons who are found to have engaged in such practices;
- A firm policy against such practices which is effectively
communicated to employees, agents and persons employed as independent
- A program to educate employees and agents about unlawful discriminatory practices under local, state and federal law; and
- Procedures for the supervision of employees and agents and for the
oversight of persons employed as independent contractors specifically
directed at the prevention and detection of such practices; and
- A record of no, or relatively few, prior incidences of
discriminatory conduct by such employee, agent or person employed as an
independent contractor or other employees, agents or persons employed as
These criteria are for the jury to weigh. There is no safe harbor under
which a defendant may remove punitive damages from a case. The New York
City Council gave the NYC Human Rights Commission the power to create a
safe harbor by establishing "policies, programs and procedures" for the
"prevention and detection of discrimination by employees," 8-107(13)(f),
but the Commission has never utilized such power.
The author of the City Law and the Restoration Act, Prof. Craig Gurian, noted:
Given the City Human Rights Law's overriding concern that covered
entities be made to recognize the seriousness with which they must take
their obligations, advocates will likely question why a defendant who
recklessly disregards the risk that its conduct will harm the plaintiff
should not, as a matter of local law, be liable for punitive damages.
Such conduct is blameworthy regardless of whether the defendant is
disregarding, as required by Kolstad, a known risk of violating the law.
A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 Fordham Urb.L.J.255, 318 (2006).
Since the passage of the Restoration Act in 2005 it has been widely
accepted that the City Law should be interpreted more liberally than
similar federal statutes. Simmons v. New York City Transit Authority,
2008 WL 2788755, 2 (E.D.N.Y.) (E.D.N.Y., 2008) ("should be 'construed
independently from similar or identical provisions of New York State or
federal statutes.' N.Y.C. Local Law No. 85 § 1 (Oct 3, 2005); Hanna v.
New York Hotel Trades Council, 18 Misc.3d 436, 438, 851 N.Y.S.2d 818,
822 (N.Y.Sup. 2007)("The Court notes the New York City Council policy
that NYCHRL is to be liberally and independently construed with the aim
of making it more protective than its federal (Title VII of the Civil
Rights Act of 1964)...counterpart..."); Krist v. OppenheimerFunds, Inc.,
2007 WL 4624023, 4 (N.Y.Sup.) (N.Y. Sup.,2007)("NYCHRL § 8-107, et seq.,
as amended by the Local Civil Rights Restoration Act of 2005, is
required to be construed liberally").
In actual practice, most judges in NewYork are skeptical of a jury award
of punitive damages in excess of a multiple of four times compensatory
plus economic damages in the absence of conduct which is extremely
reprehensible. However, there are cases which have upheld awards of
close to the maximum of a ten-to-one ratio.
A case which involves a seriously abusive hostile work environment can
produce a constitutionally permissible seven figure punitive damages
award for a single plaintiff. In Gallegos v. Elite Model Mgmt. Corp.,
781 N.Y.S. 2d 624, 2004 WL 51604, 2004 N.Y. Slip Op. 50000(U), 5 (N.Y.
Sup. 2004) (discussed above), the trial court sustained a $2.6 million
punitive damages award under the City Law. The court explained:
The evidence adduced at trial was certainly sufficient to justify an
award of punitive damages. Under State Farm v. Campbell, 538 US 408, 155
L.Ed2d 585 [ 2003], due process considerations make it necessary to
consider the fairness of the awards. The most important consideration is
the reprehensibility of the conduct. The repeated failure to observe
the non-smoking law in the light of petitioner's [asthma] and the
tolerance of cruel practical jokes evinced a reckless disregard for the
plaintiff's physical health and was reprehensible, We are also
instructed to consider the disparity between the harm endured by
plaintiff and the difference between the punitive damages awards and the
civil damages awards in similar cases. The Court holds that the
reprehensibility of the defendants' conduct, combined with a $2.6
million award for punitive damages as compared to a $1.1 million dollar
award for pain and suffering fully satisfied due process.
Most recently, in August, 2008, a jury hearing a religious
discrimination in the Southern District of New York awarded punitive
damages in the amount of $500,000, where the compensatory damages
In summary, it is essential to consider punitive damages in assessing
the value of a discrimination cases. This is particularly true in
harassment cases that involve egregious misconduct, and willful
disregard of an employee's rights. The Human Rights Law, and its
provision for punitive damages, offers considerable protection for New
York victims of discrimination.