Sara Levin, et al.,
Yeshiva University et al.,
2001 NY Int. 89
The New York City Human Rights Law, like the State
Human Rights Law, protects certain groups from policies or
practices that discriminate against them in areas such as
employment, public accommodations and housing (see, Executive Law § 296; NYC Admin. Code § 8-107). The City's Human Rights Law
goes the additional step of prohibiting policies or practices
which, though neutral on their face and neutral in intent, have
an unjustified disparate impact upon one or more of the covered
Plaintiffs Sara Levin and Maggie Jones are lesbians
enrolled at defendant Yeshiva University's Albert Einstein
College of Medicine (AECOM) in the Bronx.
Wildfire appears as an officer of AECOM's lesbian and gay
students' organization. The complaint alleges the following
facts, which we must accept as true for present purposes:
Yeshiva maintains a number of different sized apartments near
AECOM for the housing of medical students. AECOM's housing
policy restricts university-owned housing to medical students,
their spouses and children. All apartment vacancies are filled
from a waiting list on a first-come, first-served basis. Married
couples, however, receive priority for studio apartments. One-
bedroom apartments must be shared by a minimum of two students or
a married couple. Two-bedroom apartments must be shared by a
minimum of three individuals, with married couples having one or
more children receiving priority.
To receive housing priority,
Prior to her first year of medical school, plaintiff Sara Levin requested housing for herself and her partner of five years. Pursuant to its policy, AECOM informed her that she had to produce proof of marriage in order to live with a non-student. Unable to produce proof of marriage, Levin accepted housing in an on-campus three-bedroom apartment with two other students. Levin's request for housing with her partner was again denied the following year. Eventually, Levin and her partner moved into an off-campus apartment in Brooklyn. In her first year of medical school, plaintiff Maggie Jones was also denied housing with her partner. Jones accepted a one-bedroom apartment with another AECOM student during her first year, but then also relinquished campus housing to live with her partner off-campus.
Plaintiffs commenced this action in 1998 claiming that
defendants' housing policy discriminated against them based on
marital status in violation of the New York State and City Human
Rights Laws and that it had a disparate impact against lesbians
and gay men in violation of the City Human Rights Law (NYC Admin.
Code § 8-107 and ). In lieu of answering, defendants
moved to dismiss the complaint pursuant to CPLR 3211(a) 7).
Supreme Court granted defendants' motion and dismissed the
complaint in its entirety. The Appellate Division affirmed,
Contrary to plaintiffs' assertions, AECOM's policy did not discriminate on the basis of marital status on its face. This question is settled by our prior holdings in Matter of Pizza Hut v New York State Human Rights Appeal Bd. (51 2 506) and Hudson View Properties v Weiss (, 59 NY2d 733).
As we held in Matter of Pizza Hut, and then again in
Hudson View, for purposes of applying the statutory proscription,
a distinction must be made between the complainant's marital
status as such, and the existence of the complainant's
disqualifying relationship -- or absence thereof -- with another
person. Just as the lease provision in Hudson View did not turn
on the marital status of the tenant, but instead validly limited
occupancy to only those in a legal, family relationship with the
tenant, AECOM's housing policy is restricted to those in legally
In our view, AECOM's housing policy -- limiting cohabitational housing eligibility to students, their spouses and dependent children -- is substantially indistinguishable from the policy considered in Hudson View limiting occupancy to tenants and their "immediate family." For this reason, the policy does not facially discriminate on the basis of marital status and the causes of action alleging such discrimination, as prohibited by both the State and City Human Rights Laws were properly dismissed.
Section 8-107(5)(a)(1) of the Administrative Code of
the City of New York makes it an unlawful discriminatory practice
to refuse housing accommodations to any person because of that
person's "actual or perceived race, creed, color, national
origin, gender, age, disability, sexual orientation, marital
status, or alienage or citizenship status * * * " (emphasis
supplied). At the outset, we note that this provision applies to
those who provide public or private housing accommodations, and
so Yeshiva's status as a private institution does not exempt it
from the enactment. While denying its violation, Yeshiva
concedes that it is subject to the City Human Rights Law.
A claim of discrimination based on sexual orientation can be stated where a facially neutral policy or practice has a disparate impact on a protected group (NYC Admin. Code § 8- 107[a]-). Under that section, a claim is established where a plaintiff demonstrates that a defendant's policy or practice "results in a disparate impact to the detriment of any group protected" under the City Human Rights Law (id.). Our inquiry at this stage concerns whether the complaint sufficiently pleads that AECOM's housing policy has such a disparate impact on the basis of sexual orientation. How impact is measured is obviously a critical determination.
Instructive in this regard is Griggs v Duke Power Co.
(401 US 424). In Griggs, plaintiffs, African-American employees
of the defendant utility, alleged that their employer violated
Title VII of the Civil Rights Act of 1964 by instituting a policy
The United States Supreme Court reversed, holding that
under the Civil Rights Act, "practices, procedures or tests
neutral on their face, and even neutral in terms of intent,
cannot be maintained if they operate to freeze the status quo of
prior discriminatory employment practices" (Griggs,
Twenty years after Griggs, in 1991, the City of New York enacted Human Rights Law section 8-107(17), explicitly creating a disparate impact cause of action for plaintiffs who can demonstrate "that a policy or practice of a covered entity [e.g., employer, housing provider] or a group of policies or practices of a covered entity results in a disparate impact to the detriment of any [protected] group" (NYC Admin. Code § 8- 107[a]). Unlike the State Human Rights Law, the City law both specifies a right of action for policies or practices that have a disparate impact and specifically prohibits any form of discrimination based on sexual orientation. The New York City Council also explicitly made "disparate impact" applicable to discrimination claims outside of the employment context (NYC Admin. Code § 8-107).
Here, the Appellate Division held that, as a matter of
law, AECOM's housing policy did not have a disparate impact on
plaintiffs on the basis of sexual orientation. It reached that
conclusion by also ruling as a matter of law that married
students had to be excluded from consideration for purposes of
comparison between the benefitted and excluded classes. We
conclude that the court erred in dismissing the complaint on that
The exclusion of married students from the necessary
comparison group conflicts with controlling disparate impact
methodology and analysis. Self-evidently, married students make
up a significant portion of the very class of persons made
eligible by AECOM's policy for the substantial economic and
social benefits of cohabiting with non-students in university-
owned housing. In no presently authoritative precedent, either
Federal or from our Court, has a plaintiff in a disparate impact
discrimination case been precluded from pointing to the
composition of the class of persons rendered eligible for
benefits under the challenged policy at issue. Excluding a large
portion of the class benefitted by this policy from the disparate
impact comparison group would render the disparate impact
analysis articulated in Griggs (401 US 424,
Here, the Appellate Division declared that only unmarried AECOM students were the proper comparison group, citing Hudson View Properties v Weiss (, 59 NY2d 733)as its basis. In so doing, the court apparently adopted one of defendants' two principal justifications for excluding consideration of married students.
According to defendants, Hudson View established the legality of their housing policy, based upon the marital relationships of students and non-students, as against any discrimination challenge. On the basis of that assumption, defendants conclude that "married students are not similarly situated to other students because the distinction that the housing policy draws on the basis of marital relationship is a lawful one" (defendants' brief, at 32 [emphasis in the original]). The fallacy of this premise is easily demonstrated.
Hudson View holds only that a landlord's restriction
limiting occupancy to a tenant's immediate family does not
violate prohibitions against facial discrimination based upon
marital status. It does not, however, determine the question of
whether the same policy would constitute prohibited disparate
treatment or disparate impact discrimination based upon sexual
orientation or, indeed, discrimination against any other
statutorily protected class. Thus, if AECOM had limited
cohabitational university housing to married students of a
particular race and their non-student spouses, such a policy
Defendants' alternative argument is likewise unavailing. They assert that, because State law limits marriage to a union between a man and a woman, marriage-based requirements, by their very terms, facially discriminate on the basis of sexual orientation. "[I]t is analytically false to characterize a 'marriage-based requirement' as being a 'facially neutral policy' vis a vis sexual orientation" (Defendants' Brief, at 34). From that proposition, defendants draw the conclusion that married students must therefore be entirely excluded from the disparate impact analysis: "Because being married is not a facially neutral criterion as to [a]ppellants' claims of discrimination on the basis of sexual orientation, the courts below were correct in excluding married students from the composition of the similarly situated groups to be compared" (id.).
This reasoning is flawed in two critical respects.
That is exactly the case here. As defendants have conceded, not only students with spouses, but also students with dependent children, regardless of sexual orientation, are entitled to housing priorities under AECOM's policy. Conversely, not only gay and lesbian students and their partners are excluded from cohabitational housing, but also heterosexual students and their partners who, for whatever reason, are unable or unwilling to marry, as well as heterosexual and homosexual students who wish to live with relatives not qualifying as dependent children. Second, even if we were to accept defendants' proposition that AECOM's housing policy lacks facial neutrality "vis a vis sexual orientation," then AECOM would be compelled to acknowledge that its policy was facially discriminatory and, thus, in direct violation of the City's Human Rights Law on the basis of disparate treatment, without the necessity of establishing disparate impact.
Defendants' position here essentially distills to the
proposition that AECOM's policy must be viewed as distinguishing
between two nonsimilarly-situated groups: married students on the
At issue in General Electric v Gilbert was a company
employee disability plan that gave its workers benefits during
periods of disability due to all nonoccupational causes except
pregnancy. The majority in Gilbert held that the plaintiffs
failed to establish a Civil Rights Act Title VII violation for
discrimination based upon gender, employing a rationale almost
indistinguishable from that advanced here by defendants. That
is, that the disability plan created two separate and dissimilar
groups: (1) pregnant women (based on their physical condition,
not gender); and (2) nonpregnant men and women, who were treated
equally for benefit eligibility (see, Gilbert, 429 US, at l34-
l35). The dissenters in Gilbert rejected that analysis as
"simplistic and misleading" (id., at 152). The relevant
comparison, according to the dissenters, had to be the overall
disability coverage afforded men as against that afforded women
(see, 429 US, at 155, 160 [Brennan, J., dissenting]; id., at 161
[Stevens, J., dissenting]). Under that analytical framework, the
As fully explained in Newport News Shipbuilding and
Drydock Co., in 1978, Congress overruled and repudiated the
reasoning of Gilbert, and the legislative history expressly
adopted the views of the dissenters in that case (see, Newport
In order to determine whether AECOM's housing policy
has a disparate impact that falls along the impermissible lines
of sexual orientation, there must be a comparison that includes
consideration of the full composition of the class actually
benefitted under the challenged policy. Because the Appellate
Division's exclusion of at least a significant portion of that
benefitted group constituted error as a matter of law, the cause
of action alleging disparate impact discrimination based on
sexual orientation as proscribed by the New York City Human
Rights Law § 8-107(17) was improperly dismissed on the pleadings
and must be reinstated and remitted to Supreme Court for further
proceedings. If, upon remittal, plaintiffs establish that
Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the seventh cause of action of plaintiffs Levin and Jones and, as so modified, affirmed.
I agree with the majority that there is no marital status discrimination. I also agree that the plaintiffs have stated a claim under the disparate impact section of New York City Administrative Code § 8-107(17). Because I interpret that provision differently than the majority does, I concur but do not join the disparate impact section of the opinion.
Plaintiffs are medical students at defendant Einstein College of Medicine, a division of the defendant Yeshiva University, a private educational institution. Defendants offer housing at below market rates in apartment buildings near campus. This housing includes studio, one-bedroom and two-bedroom apartments and is made available to students, their spouses and children.
Plaintiffs Levin and Jones, medical students, alleged
that their request to have their same-sex partners live with them
was denied because they were not married. Plaintiffs each
accepted the affordable housing offered to them as individuals,
but later moved out of their university apartments in order to
Plaintiffs commenced an action in Supreme Court, alleging that defendants' housing policy discriminates on the basis of marital status in violation of the New York City and State Human Rights Laws, violates Real Property Law § 235-f, the Roommate Law, and has a disparate and detrimental impact on gay and lesbian students because it discriminates on the basis of sexual orientation in violation of New York City Human Rights Law. The seventh cause of action alleges specifically:
38. By allowing married spouses of AECOM students to live in university housing but prohibiting non-married partners of AECOM students to live in university housing, defendants have engaged in a practice that has a disparate impact on lesbians and gay men and that therefore discriminates on the basis of sexual orientation in housing in violation of New York Administrative Code § 8-107(5) and (17).
On defendants' motion, Supreme Court dismissed the
Noting that plaintiffs were offered and accepted university housing, the trial court further held that a cause of action under a disparate impact theory did not lie because plaintiffs' ability to obtain housing was not adversely affected insofar as they were given housing as individuals. The court reasoned that insofar as society generally affords benefits to married couples, it was entitled to act in accordance with such general principles. It reasoned further that plaintiffs' real complaint lay with the Legislature's refusal to sanction same-sex marriages and concluded that plaintiffs should seek policy reform with the Legislature.
The Appellate Division affirmed. It concluded that
plaintiffs had not stated a marital status discrimination cause
On this appeal, plaintiffs argue that (1) they have stated a cause of action for violation of the New York City Human Rights Law, New York City Administrative Code § 8-107(17) (the City HRL) because defendants' housing policy discriminates on the basis of sexual orientation by creating a disparate impact on gay and lesbian students; (2) that the appropriate comparison for disparate impact purposes is between married persons and homosexual persons in committed relationships; (3) that the
Defendants argue (1) that plaintiffs have not alleged a disparate impact claim; (2) that the relevant categories for determining a disparate impact are non-married heterosexual students and non-married homosexual students; and (3) that when the appropriate categories are analyzed, plaintiffs suffered no greater impact as a result of the housing practice than similarly situated heterosexual non-married students.
New York City Administrative Code § 8-107(17) states, in part:
An unlawful discriminatory practice based upon disparate impact is established when: (1) the commission or a person who may bring an action under chapter four or five of this title demonstrates that a policy or practice of a covered entity or a group of policies or practices of a covered entity results in a disparate impact to the detriment of any group protected by the provisions of this chapter.
Griggs v Duke Power Co. (401 US 424) does not support
The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices (401 US 424).
In order to apply Griggs v Duke Power Co. to the facts here, this
Court must conclude that the traditional practice of private
universities of granting housing preferences to married couples
is unlawful discrimination, as well as being unlawful in its
discriminatory impact. I am unable to draw that conclusion,
particularly when marriage is a fundamental constitutional right
(see, Loving v Virginia, 388 US 1; Zablocki v Redhail, 434 US
I concur in the majority's conclusion that plaintiffs have stated a claim that AECOM's housing policy has a disparate impact on gays and lesbians, in violation of the New York City Human Rights Law, and that the disparate impact claim should be remitted to Supreme Court for further proceedings. I further conclude that plaintiffs have stated a claim of marital status discrimination.
Both the State and City Human Rights Laws make it
illegal to withhold a housing accommodation from any person
because of that person's marital status (see, Executive Law §§
296[2-a][a], 296[a]; NYC Admin Code § 8-107). As
this case comes to us in the context of a motion to dismiss, we
must, for the purposes of this appeal, take plaintiffs'
allegations as true. Here, plaintiffs allege that they were
denied access to partner housing -- a type of housing
accommodation offered by AECOM -- simply because they were not
married. AECOM permits married students to live in student
housing with their partners; only unmarried students are denied
this benefit. When plaintiffs applied for housing for their
partners, the sole question asked by AECOM was whether they were
married. Since plaintiffs could not present marriage
certificates, they were denied access to the housing benefits
Our decisions in Hudson View Properties v Weiss (, 59 NY2d 733) and Manhattan Pizza Hut v New York State Human Rights Appeal Board (51 2 506) are not to the contrary. In Hudson View, a landlord sought to evict a female tenant for violating a provision in the lease limiting occupancy to the tenant and her "immediate family." The tenant was sharing the apartment with a man who admittedly was not part of her immediate family (59 2 at 735). This Court held that the lease provision was enforceable, rejecting the tenant's argument that it constituted marital status discrimination. The Court stated, "the issue arises not because the tenant is unmarried, but because the lease restricts occupancy of her apartment * * * to the tenant and the tenant's immediate family" (id.). Thus, the Court concluded, the "applicability of that restriction does not depend on her marital status" (id.).
The extent of our holding in Hudson View was that a
landlord does not engage in marital status discrimination by
denying housing to a person who is not part of the tenant's
immediate family. Unlike the tenant in Hudson View, plaintiffs
have never admitted that their life partners are not part of
their immediate families. Indeed, the gravamen of plaintiffs'
complaint is that they share the same level of commitment with
their partners as married persons share with their spouses --
Significantly, in Braschi v Stahl Associates Co. (74 2 201, 211), a plurality of this Court concluded that a tenant's same-sex life partner qualified as "family" under the non-eviction protection provisions of the New York City rent control law, stating that term "family" includes "two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence." Indeed, in Hudson View the Court noted that it was not called upon to address whether the tenant's boyfriend could become part of her family "by marriage or otherwise" (59 2 at 735). Clearly then, this Court has recognized that the concept of "family" can include more than just married couples and their children.
At the very least, it is a question of fact whether
plaintiffs' life partners qualify as members of their "immediate
families." If they do, the State and City Human Rights Laws
prohibit AECOM from denying them partner housing merely because
they are unmarried. Since discovery and factfinding on this
issue are necessary, the lower courts improvidently granted
Similarly inapposite is Manhattan Pizza Hut v New York State Human Rights Appeal Board. In that case, the Court upheld Pizza Hut's anti-nepotism rule forbidding an employee from working under the supervision of a spouse, parent, sibling or offspring. Plaintiff was fired for being married to her supervisor, and she brought suit alleging marital status discrimination under the State Human Rights Law. Recounting the many sound reasons supporting Pizza Hut's anti-nepotism rule, this Court upheld the termination, stating that the Human Rights Law does not prohibit discrimination based on an employee's "relationships" (51 2 at 513-514). The Court concluded that plaintiff had not suffered marital status discrimination because she was fired not for being married but "for being married to her supervisor" -- a valid anti-nepotism concern (id., at 514).
Here, by contrast, plaintiffs were not denied partner housing because of their relationship to any particular person, and certainly not for violating an anti-nepotism or anti- corruption rule. Rather, they were denied partner housing merely because they were unmarried. Indeed, Pizza Hut itself states that the Human Rights Law bars decisions from being made on the basis of whether a person is "single, married, divorced, separated or the like" (id., at 512). That is exactly what happened here.
As to plaintiffs' disparate impact claim, the City Human
Here, AECOM's policy of providing partner housing to married students is facially neutral with respect to sexual orientation. That policy, however, has a disparate impact on homosexual students, because they cannot marry and thus cannot live with their partners in student housing. By contrast, heterosexual students have the option of marrying their life partners.
The Appellate Division erred by holding that the appropriate
comparison groups were unmarried heterosexual students versus
unmarried homosexual students. This holding defined plaintiffs'
claim out of existence, since the disparate impact is created by
AECOM's restriction of partner housing to married students. As
the United States Supreme Court held in Griggs v Duke Power (401 US 424), the comparison groups may not be defined in such a way.
Further, it is immaterial that State law permits only
heterosexual marriage. The City Human Rights Law specifically
bans housing discrimination on the basis of sexual orientation.
Therefore, since plaintiffs have stated a prima facie case of discrimination based on sexual orientation, the case must be remitted for application of the burden-shifting method mandated by the City Human Rights Law.
Finally, I agree that plaintiff Gila Wildfire's claims must be dismissed for lack of standing.
Accordingly, I would modify the order of the Appellate Division by affirming the dismissal of plaintiff Wildfire's claims, and by reinstating the marital status and sexual orientation claims asserted by plaintiffs Levin and Jones and remitting those claims to Supreme Court for further proceedings.
1 All parties agree that Yeshiva's religious affiliations have no bearing on this appeal. Also, plaintiffs did not plead claims based on either the State or Federal Constitution.
2 The complaint alleges, at paragraph 9, that university- owned housing is restricted to "Yeshiva students, their spouses and children." Presumably, a single parent, regardless of sexual orientation, would be eligible to reside in university-owned housing with his or her child. The complaint is silent on this subject. However, defendants appear to concede the point in their brief.
3 Once that showing has been made, defendant has an opportunity to plead and prove as an affirmative defense that the policy or practice complained of "bears a significant relationship to a significant business objective." The defense is defeated, however, when plaintiff produces substantial evidence of an available alternative policy or practice with less disparate impact, and defendant fails to prove that the alternative policy or practice would not serve defendant's significant business objective as well as the complained-of policy or practice (NYC Admin. Code § 8-107[a]).
4 The third named plaintiff, Wildfire, is secretary and treasurer of a lesbian and gay student organization whose members include Levin, Jones and other students negatively affected by the defendants' policy.
5 Specifically, the first five causes of action allege discrimination on the basis of marital status in violation of New York Executive Law § 296(5)(a)(1), NYC Administrative Code § 8- 107(5) and New York Executive Law §§ 296 (2-a), 296(4) and 296(5)(a)(3) respectively. The sixth cause of action alleges a violation of the Roommate Law, NY Real Property Law § 235-f.
6 Plaintiffs did not seek leave to appeal the dismissal of their cause of action under the Roommate Law.
7 In Baker v State (744 A2d 864)the Vermont Supreme Court held that plaintiffs, same-sex couples were entitled to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples" (id., at 886), and further held that "the current statutory scheme [would] remain in effect for a reasonable period of time to enable the Legislature to consider and enact implementing legislation in an orderly and expeditious fashion (id., at 887). On July 1, 2000, Vermont's civil unions law took effect (see, Vt Stat Annot, tit 15, § 1204).