Stephen Bergstein, for appellant.
H. Forman, for respondents.
Anti-Discrimination Center, Inc.; City of New York
National Employment Lawyers Association/New York (NELA/NY),
York City Human Rights Law makes clear that punitive damages
are available for violations of the statute, but does not
specify a standard for when such damages should be awarded.
The Second Circuit has, by certified question, asked us to
determine the applicable standard. We conclude that,
consistent with the New York City Council's directive to
construe the New York City Human Rights Law liberally, the
common law standard as articulated in Home Insurance Co.
v American Home Prods. Corp. (75 N.Y.2d 196, 203-204
) applies. Accordingly, a plaintiff is entitled to
punitive damages where the wrongdoer's actions amount to
willful or wanton negligence, or recklessness, or where there
is "a conscious disregard of the rights of others or
conduct so reckless as to amount to such disregard"
(see Home Ins. Co. v Am. Home Prods. Corp., 75
N.Y.2d 196, 203-204 ).
a physical therapy aide, sued her former employer and two
supervisory employees for sex and pregnancy discrimination
under Title VII (42 USC §§ 2000e [k], 2000e-2 [a]),
the Family Medical Leave Act (29 USC § 2601), the New
York State Human Rights Law (Executive Law § 296 
[a]), and the New York City Human Rights Law (NYC Admin Code
§ 8-107  [a]) (NYCHRL) in the United States District
Court for the Eastern District of New York. At trial,
plaintiff's counsel requested a jury instruction on
punitive damages under the NYCHRL. In considering the
request, the court applied to the NYCHRL the standard for
punitive damages found in Title VII, namely, whether
plaintiff had submitted evidence that her employer had
intentionally discriminated against her with malice or
reckless indifference to her protected rights, and denied the
instruction. The court stated, "[t]here is nothing here
that supports punitive damages.... There's no showing of
malice, reckless indifference, that there was an intent to
violate the law. They may have violated the law, which is
what you are going to try to prove, but there is certainly no
evidence of intent." The jury found defendants liable
for pregnancy discrimination and awarded plaintiff $10, 500
in compensatory damages and $50, 000 in pain and suffering.
appealed, arguing that the district court erred in importing
the Title VII standard. After noting that the NYCHRL
"does not articulate a standard for a finding of
employer or employee liability for punitive damages, "
the Second Circuit acknowledged that the passage of the 2005
Local Civil Rights Restoration Act (NYC Admin Code §
8-130 [a] [Restoration Act]) and subsequent related
amendments, calling for a liberal construction of all
provisions of the NYCHRL in all circumstances, called into
question the Second Circuit's 2001 holding in Farias
v Instructional Systems, Inc. (259 F.3d 91');">259 F.3d 91');">259 F.3d 91');">259 F.3d 91 [2d Cir
2001]) that Title VII's standard for punitive damages
applies to the NYCHRL (Chauca v Abraham, 841 F.3d
86, 91-92 [2d Cir 2016]). The Second Circuit noted that the
Restoration Act "otherwise provides no specific
guidance" regarding how to interpret the NYCHRL where
the statute is silent as to the applicable standard
(id. at 88). Accordingly, the Second Circuit
certified the following question: "What is the standard
for finding a defendant liable for punitive damages under the
New York City Human Rights Law?"
NYCHRL prohibits an employer from "refus[ing] to
hire" or "discharg[ing] from employment"
anyone because of their gender . The NYCHRL provides for
compensatory and punitive damages and other remedies against
employers and employees found directly or vicariously liable
for discrimination, a provision the City Council included in
the NYCHRL in 1991 (NYC Admin Code § 8-502 [a]).
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 (see id. § 8-107 [d] - [e]).
Despite the clear intention to make punitive damages
available, there is no provision in the NYCHRL setting a
standard for imposing them. In light of this silence in the
statute, we must now determine what standard applies for
awarding punitive damages under the NYCHRL.
"starting point in any case of interpretation must
always be the language itself, giving effect to the plain
meaning thereof" (Matter of Shannon, 25 N.Y.3d
345, 351 ). It is a well-established principle of
statutory construction that words of technical or special
meaning are used by the legislature, "not loosely, but
with regard for their established legal significance, and in
construing a statute a technical meaning should be given to
technical words, unless a contrary meaning is unmistakably
intended" (People v Wainwright, 237 NY 407, 412
; see McKinney's Cons Laws of NY, Book 1
Statutes § 233 ["when a word having an established
meaning at common law is used in a statute, the common law
meaning is generally followed"]).
damages" - as used in section 8-502 - is a legal term of
art that has meaning under the New York common law. Punitive
damages are intended not only to "punish the
tortfeasor" but also to "deter future reprehensible
conduct" (Ross v Louise Wise Servs., Inc., 8
N.Y.3d 478, 489 ; Hartford Acc. & Indem. Co. v
Village of Hempstead, 48 N.Y.2d 218, 226 ). In our
1990 decision in Home Insurance Co., we articulated
the punitive damages standard as "essentially... conduct
having a high degree of moral culpability which manifests a
conscious disregard of the rights of others or conduct so
reckless as to amount to such disregard" (75 N.Y.2d at
203-204 [citations and internal quotation marks omitted]).
relying almost exclusively on the legislative intent of the
NYCHRL and the Restoration Act, argues that she should be
entitled to a punitive damages charge upon any
showing of liability. Under plaintiff's approach, any
discrimination case that goes to a jury would be accompanied
by a punitive damages charge without any guidance as to when
to award such damages. In plaintiff's view, punitive
damages should be available in any situation where
compensatory damages are available; the required showing of
entitlement to either form of damages would be identical. The
dissent agrees, and argues that the Restoration Act's
liberal construction principles mandate a holding that
"a punitive damages charge is automatic on a finding of
liability" (dissenting op at 7).
reject that approach. Punitive damages differ conceptually
from compensatory damages and are intended to address
"gross misbehavior" or conduct that "wilfully
and wantonly causes hurt to another" (Thoreson v
Penthouse Int'l, 80 N.Y.2d 490, 497 ). Indeed,
this Court has noted that "[n]ot only do [punitive
damages] differ in purpose and nature from compensatory
damages, but they may only be awarded for exceptional
misconduct which transgresses mere negligence"
(Sharapata v Town of Islip, 56 N.Y.2d 332, 335
). Punitive damages represent punishment for wrongful
conduct that goes beyond mere negligence and are warranted
only where aggravating factors demonstrate an additional
level of wrongful conduct (see Home Ins. Co., 75
N.Y.2d at 203-204). Accordingly, there must be some
heightened standard for such an award.
assertion that the mitigation provisions discussed in section
8-107 (13) support the argument that punitive damages are
available to any employment discrimination plaintiff, without
the need to show a heightened level of culpability, lacks
merit. This section provides a way for an employer, when
faced with vicarious liability, to mitigate punitive damages,
where they are otherwise warranted, if certain factors are
established. Moreover, as the Second Circuit noted, that
section applies only to employers' vicarious liability
once the punitive damages standard has been met and cannot be
read to address the standard itself (see Chauca, 841
F.3d at 92 n 3). Nothing in that provision requires a
punitive damages charge whenever liability, vicarious or
direct, is demonstrated. Indeed, the dissent's assertion
that a punitive damages charge is "automatic" is
not a "reasonably possible" interpretation of the
statute (dissenting op at 13).
contend that the Title VII standard for punitive damages,
employed by the Second Circuit in Farias, should
apply (see 259 F.3d at 102). We reject this approach
as contrary to the intent of the Council.
Farias, the Second Circuit held that a plaintiff
must show that a defendant engaged in intentional
discrimination with malice or reckless indifference to a
protected right in order to obtain punitive damages under the
NYCHRL (id. at 100; see also Koldstadt v Am.
Dental Ass'n, 527 U.S. 526, 529-30 ). The
Title VII standard requires "intentional
discrimination... with malice or with reckless indifference
to the... protected rights of an aggrieved individual"
and the Supreme Court has specified that "the terms
'malice' or 'reckless indifference' pertain
to the employer's ...