Legal Memorandum: Viable Hostile Work Environment Claim in NY

Issue: What is the viability of a hostile work environment claim under 42 U.S.C. 1981 and what is the extent of damages allowed in New York?

Area of Law: Constitutional Law, Employee Law
Keywords: Hostile work environment claim; Viability; Extent of damages
Jurisdiction: New York
Cited Cases: 192 F.3d 902; 183 F.3d 782; 69 F.3d 1344; 509 F. Supp. 2d 210; 536 U.S. 919; 281 F. Supp. 2d 1277; 218 F.3d 392; 123 F.3d 1046; 202 F.3d 1262; 224 F.3d 1014; 527 U.S. 526; 97 F.3d 488; 332 F.3d 1347; 441 F. Supp. 2d 163; 509 U.S. 443; 387 F.3d 109; 259 F.3d 91; 527 F. Supp. 2d 230; 212 F.3d 493; 456 F.3d 228; 233 F.3d 655; 538 U.S. 408; 257 F.3d 780; 311 F.3d 565; 178 F.3d 1336; 269 F. Supp. 2d 1064; 110 F.2d 210; 541 F. Supp. 2d 555; 43 F. Supp. 2d 205
Cited Statutes: 42 U.S.C. § 1981a(b)(1); Title VII of the Civil Rights Act of 1964
Date: 10/01/2008

After the 1991 amendment to Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), a plaintiff may recover punitive damages by “demonstrate[ing] that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.”  42 U.S.C. § 1981a(b)(1).  After Kolstad v. American Dental Association, 527 U.S. 526 (1999), a plaintiff need not show that the employer engaged in “egregious misconduct,” but only that the discrimination was intentional and malicious or recklessly indifferent.  Id. at 538.  A showing that the conduct was malicious or recklessly indifferent is made by showing that the employer knew it might be acting in violation of federal law.  Id. at 535.  The reprehensible nature of the conduct is necessarily connected to the employer’s state of mind; “pointing to evidence of an employer’s egregious behavior would provide one means of satisfying the plaintiff’s burden to ‘demonstrat[e]’ that the employer acted with the requisite ‘malice or reckless indifference.'”  Id. at 539.

The sets of factors for the fact finder to consider when granting punitive damages are:  (1) the degree of reprehensibility of the employer’s act; (2) the disparity between the harm to the plaintiff and the punitive damages award; and (3) the difference between the punitive damages and the civil penalties authorized.  BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).  The Supreme Court also has provided five aggravating factors for consideration when evaluating how reprehensible the […]

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