State Division of Human Rights Must Re-examine Organization's Housing Discrimination Claim

CityVision, a nonprofit organization that tests whether housing facilities engage in discrimination by having their agents pose as prospective tenants, placed a test call to landlord in 2016 seeking to rent an apartment. Following that call, CityVision filed a complaint with the state Division of Human Rights, claiming that landlord had discriminated against their caller based on her familial status. CityVision claimed that landlord steered the staff member to a different apartment complex after discovering that she intended to live in the apartment with her children. DHR dismissed the complaint, finding no probable cause that landlord engaged in familial status discrimination.

Landlord's attorney then wrote to CityVision and its staff member seeking damages for their "false, fraudulent and libelous" claim. In response, CityVision and the staff member filed a second discrimination complaint, claiming that landlord and its attorney sent the letter to intimidate them and therefore interfered with their protected rights. After a hearing, DHR made a finding of unlawful retaliation, a damages award payable to CityVision, a civil fine, and attorney's fees. 

Landlord then sued to annul DHR's ruling. DHR cross-petitioned to enforce its determination. The Appellate Division annulled the DHR's ruling and granted landlord's petition. That court found that DHR improperly shifted the burden to landlord to prove that CityVision didn't hold a reasonable belief that landlord was engaging in housing discrimination. The court didn't send the matter to DHR for further proceedings, finding that the hearing evidence failed to support the finding that landlord took adverse action against CityVision. The Appellate Division found that the mere sending of landlord's attorney letter didn't rise to the level of retaliation. 

New York's highest court gave DHR permission to appeal. Noting that the NY State Human Rights Law prohibits retaliation against those who make discrimination complaints or engage in other protected activity, the Court of Appeals held that a threat of litigation may constitute the requisite adverse action to support a retaliation claim, and therefore DHR rationally concluded that this element had been established. But the Court of Appeals sent the case back to the Appellate Division for further remand to DHR because DHR improperly shifted the burden when analyzing whether respondent CityVision Services had engaged in protected activity. 

Matter of Clifton Park Apts., LLC v. NY State Div. of Human Rights: 2024 NY Slip Op 00793 (Ct. App.; 2/15/24; Singas, J)