Retaliation Under the New York City Human Rights Law

The New York City Human Rights Law (NYCHRL) has its own retaliation rule, Administrative Code § 8-107(7). It forbids any covered person to "retaliate or discriminate in any manner" against someone for protected activity, and it states that the retaliation need not be an ultimate action or a materially adverse change in the terms of employment, as long as it is reasonably likely to deter a person from engaging in protected activity.⁠^[1]

That wording is not the same as the wording of the federal or New York State provisions. This page sets the City rule out in full and then places the three side by side. For the general framework see what is workplace retaliation?; for the City statute as a whole see the New York City Human Rights Law, explained.

What does § 8-107(7) protect?

The City statute lists six protected activities. It is an unlawful discriminatory practice to retaliate or discriminate in any manner against any person because that person has:⁠^[1]

1. opposed any practice forbidden under the City law;⁠^[1]
2. filed a complaint, testified or assisted in any proceeding under it;⁠^[1]
3. commenced a civil action alleging an act that would be an unlawful discriminatory practice under it;⁠^[1]
4. assisted the NYC Commission on Human Rights or the Corporation Counsel in an investigation;⁠^[1]
5. requested a reasonable accommodation under the City law;⁠^[1] or
6. provided information to the Commission under the terms of a conciliation agreement.⁠^[1]

The fifth item was added in 2019. Local Law 129 of 2019, enacted July 14, 2019, and effective November 11, 2019, amended the Administrative Code to prohibit retaliation against individuals who request a reasonable accommodation under the City's human rights law.⁠^[6]

The Court of Appeals has addressed what "opposed" means. In Albunio v. City of New York, the Court of Appeals, New York's highest court, said that § 8-107(7) must be construed broadly in favor of discrimination plaintiffs to the extent such a construction is reasonably possible. A supervisor in that case had not said in so many words that a subordinate was a discrimination victim, but a jury could find she made clear her disapproval by communicating, in substance, that she thought her superior's treatment of the subordinate was wrong.⁠^[7] More on this element is in protected activity: what counts.

What kind of employer conduct is enough?

The City statute answers this in its text. The retaliation or discrimination "need not result in an ultimate action with respect to employment, housing or a public accommodation or in a materially adverse change in the terms and conditions of employment," provided that the act or acts complained of "must be reasonably likely to deter a person from engaging in protected activity."⁠^[1]

Two appellate decisions explain how that sentence is applied.

Williams v. New York City Housing Authority (Appellate Division, First Department, 2009). The court held that the language of the City law does not permit any type of challenged conduct to be categorically rejected as non-actionable. The assessment is to be made "with a keen sense of workplace realities," recognizing that the chilling effect of particular conduct is context-dependent and that a jury is generally best suited to evaluate the impact of retaliatory conduct. No challenged conduct may be deemed non-retaliatory before a determination that a jury could not reasonably conclude it was reasonably likely to deter a person from engaging in protected activity.⁠^[8]

Mihalik v. Credit Agricole Cheuvreux North America, Inc. (Second Circuit, 2013). The federal appeals court that covers New York stated the City test this way: to prevail on a NYCHRL retaliation claim, the plaintiff must show that she took an action opposing her employer's discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.⁠^[9]

Examples of conduct that has been treated as retaliation under the different laws are in what counts as retaliation.

How much does retaliation have to figure in the decision?

In Mihalik, the Second Circuit stated that on a NYCHRL retaliation claim, summary judgment is appropriate only if the plaintiff cannot show that retaliation played any part in the employer's decision.⁠^[2] Title VII, the federal statute, is governed by a different rule: the U.S. Supreme Court has held that Title VII retaliation claims must be proved according to traditional principles of but-for causation.⁠^[10] How causation is proved in practice, including timing and pretext, is covered in proving retaliation.

Why are City claims analyzed separately?

The Administrative Code tells courts how to read it. Section 8-130 directs that the City law be construed liberally for the accomplishment of its "uniquely broad and remedial purposes," regardless of whether federal or New York State civil and human rights laws, including laws with comparably worded provisions, have been so construed.⁠^[11] The Code names three decisions as having correctly understood that instruction: Albunio, Bennett v. Health Management Systems, Inc., and the majority opinion in Williams.⁠^[11]

For that reason this guide describes City retaliation claims on their own terms and does not carry the federal tests over to them.⁠^[11]

Federal, State and City retaliation provisions side by side

Point	Federal (Title VII)	New York State (NYSHRL)	New York City (NYCHRL)
Protected activity listed in the statute	Opposition; making a charge, testifying, assisting or participating in a proceeding⁠[12]	Opposition; filing a complaint, testifying or assisting; requesting a reasonable accommodation⁠[13]	Six activities, including starting a civil action and requesting a reasonable accommodation⁠[1]
The employer's act	Materially adverse: it well might have dissuaded a reasonable worker from making or supporting a charge⁠[14]	"Retaliate or discriminate"; retaliation may include disclosing personnel files⁠[13][15]	Reasonably likely to deter a person from engaging in protected activity; no ultimate action or materially adverse change needed⁠[1]
Causation	But-for⁠[10]	"Because" (statutory text)⁠[13]	Summary judgment for the employer only if the worker cannot show that retaliation played any part in the decision⁠[2]
Claims against individuals	Not cognizable against individuals, in the Second Circuit⁠[16]	Executive Law § 296(7) applies to "any person engaged in any activity to which this section applies"⁠[17]	Individuals may be liable for retaliation against protected conduct⁠[3]
Agency filing period	EEOC charge: 180 days, or 300 days where a state or local agency can grant relief⁠[18]	Division of Human Rights: three years, for practices on or after February 15, 2024⁠[19][20]	NYC Commission on Human Rights: one year⁠[4]
Time to sue in court	90 days after the EEOC's notice of right to sue⁠[21]	Three years⁠[22]	Three years⁠[5]
Dollar caps on compensatory and punitive damages	$50,000 to $300,000 combined, depending on employer size⁠[23][24]	No dollar limit on compensatory damages stated in Executive Law § 297⁠[25]	No dollar cap stated in Administrative Code § 8-502⁠[26]

Who can be held responsible under the City law?

The employer. For violations of § 8-107 other than subdivisions 1 and 2, which include retaliation under subdivision 7, the Administrative Code makes an employer liable for an unlawful discriminatory practice based on the conduct of an employee or agent.⁠^[27]

Individuals. Section 8-107(7) applies to "any person engaged in any activity to which this chapter applies."⁠^[1] In Doe v. Bloomberg L.P. (2021), the Court of Appeals held that where the employer is a business entity, its shareholders, agents, limited partners and employees are not "employers" under the City law.⁠^[28] The court went on to say that those individuals may incur liability only for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct.⁠^[3] See can I sue my boss personally?

Interference. Separately from retaliation, § 8-107(19) makes it an unlawful discriminatory practice for any person to coerce, intimidate, threaten or interfere with, or attempt to coerce, intimidate, threaten or interfere with, any person in the exercise of a right protected by § 8-107, or because that person aided or encouraged someone else in exercising such a right.⁠^[29]

Where does the City law apply?

The NYCHRL is a New York City law. A person who does not live in the city must plead and prove that the alleged discriminatory conduct had an impact within the city; the Court of Appeals has said it is not enough that a termination decision was made there.⁠^[30] The same decision explains that the impact requirement extends the City law's protection to nonresidents who work in the city.⁠^[31] Remote and out-of-state work is discussed in does New York law apply if I work remotely?

Where is a City claim filed, and what can be awarded?

There are two routes.

• The NYC Commission on Human Rights. The Commission has no jurisdiction over a complaint filed more than one year after the alleged unlawful discriminatory practice occurred.⁠^[4] After a hearing it can order, among other things, reinstatement, back pay and front pay, and compensatory damages.⁠^[32] See filing with the NYC Commission on Human Rights.
• Court. A civil action must be commenced within three years after the alleged unlawful discriminatory practice occurred.⁠^[5] A person aggrieved has a cause of action for damages, including punitive damages, and for injunctive relief and other appropriate remedies.⁠^[26] The court may, in its discretion, award the prevailing party reasonable attorney's fees, expert fees and other costs.⁠^[33]

A person who has filed a complaint about the same practice with the City Commission or the State Division of Human Rights generally cannot also bring a City-law court action.⁠^[26] That choice is explained in election of remedies. The three-year period to sue is tolled while a complaint with the City Commission or the State Division is pending.⁠^[5]

Punitive damages under the City law are available where the wrongdoer acted with willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.⁠^[34] See punitive damages under federal, State and City law and damages in a New York case.