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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 7
Eugene Margerum, et al.,
          Appellants-Respondents,
        v.
City of Buffalo, et al.,
          Respondents-Appellants.




          Andrew P. Fleming, for appellants-respondents.
          Jason E. Markel, for respondents-appellants.
          National Association of Hispanic Firefighters; Buffalo
Professional Firefighters Association et al.; National
Association for the Advancement of Colored People; International
Municipal Lawyers Association et al.; Pacific Legal Foundation et
al., amici curiae.




LIPPMAN, Chief Judge:
          We hold that a notice of claim need not be filed for a
Human Rights Law claim against a municipality and that plaintiffs
should not have been granted summary judgment on the issue of
liability involving discrimination as to civil service lists for

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                                - 2 -                         No. 7

Buffalo firefighters.   We therefore remit for further
proceedings.
          In 1974, the United States sued the City of Buffalo in
the Western District of New York.   Among other things, the suit
alleged that the written civil service examination developed by
the New York State Department of Civil Service and used by the
City to select entry-level firefighters and police officers had a
discriminatory adverse impact against minorities.   The District
Court found that the City's continued use of the State's
examination was part of a pattern or practice of discrimination
against African Americans, Hispanics and women in the fire and
police departments (see United States v City of Buffalo, 457 F
Supp 612 [WD NY 1978]).   The District Court issued a "Remedial
Decree" designed to remedy the effects of past discrimination,
which imposed interim hiring ratios and affirmative recruitment
efforts to increase the percentages of underrepresented classes.
The Decree was, for the most part, affirmed by the Second Circuit
(633 F2d 643 [2d Cir 1980]).
          In 1998, Men of Color Helping All (MOCHA), a not-for-
profit organization of African American firefighters, brought a
putative class action against the City of Buffalo in the Western
District of New York, alleging racially discriminatory practices
by the Buffalo Fire Department in violation of Title VII of the
Civil Rights Act of 1964 (42 USC § 2000 et seq.) and the New York
Human Rights Law (MOCHA I).    Among other things, the plaintiffs


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claimed that the 1998 examination used to select firefighters for
promotion had an illegal disparate impact against African
American firefighters.   MOCHA filed a second putative class
action in 2003.   This second suit alleged that the 2002
administration of the exam had the same discriminatory disparate
impact as the 1998 exam (MOCHA II).     About two years after the
MOCHA II commencement, the City's then Human Resources
Commissioner, Leonard Matarese, decided to allow the promotion
eligibility lists to expire between September 2005 and February
2006, before the four-year maximum duration had elapsed.
          Thereafter, while MOCHA I & II were still pending, this
action was commenced.    The 12 white firefighter plaintiffs on
this appeal alleged that the City engaged in reverse, disparate
treatment racial discrimination by permitting the promotion
eligibility lists to expire before their maximum legal duration,
thereby violating the Human Rights Law, the Civil Service Law,
and the New York State Constitution.1    Plaintiffs allege that had
the lists been extended to their maximum duration of four years,
in accordance with historical practice, they would have received
promotions.
          Prior to answering, the City moved to dismiss the



     1
        There were originally 13 plaintiffs in this case; the
trial court dismissed the claims of one plaintiff, Anthony Hynes,
on February 8, 2012, finding that the City's actions had not
harmed him. He did not appeal; thus, this appeal involves 12
plaintiffs.

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                               - 4 -                           No. 7

complaint pursuant to CPLR 3211, raising, among other grounds,
plaintiffs' undisputed failure to file a General Municipal Law
§ 50-i notice of claim.   The City argued that the statutory
provision required the plaintiffs, as a precondition to
commencing suit, to provide prior notice of their claims in order
to permit timely investigation and opportunity for early
resolution.   Plaintiffs cross-moved for partial summary judgment
on liability.   Supreme Court denied the City's motion to dismiss
and granted plaintiffs' motion for summary judgment on liability.
The litigation was then stayed pending resolution of the MOCHA I
litigation.
          The federal District Court then issued an order
dismissing the Title VII claims to the extent the MOCHA
plaintiffs sought relief based on the City's 1998 administration
of the exam   (MOCHA Socy., Inc. v City of Buffalo, 2009 WL 604898
[WD NY March 9, 2009]).   A year later, the District Court
dismissed the MOCHA II litigation as well, finding that the MOCHA
plaintiffs were collaterally estopped from challenging the 2002
administration of the exam because there was a "substantial
identity of dispositive issues and proof regarding the validity
of the Lieutenant's Exams litigated in MOCHA I and MOCHA II"
(MOCHA Socy., Inc. v City of Buffalo, 2010 WL 1930654 [WD NY
May 12, 2010]).
          In the present action, the Appellate Division, in June
2009, affirmed Supreme Court's denial of the City's motion to


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                                - 5 -                           No. 7

dismiss, holding that dismissal was not warranted based on
plaintiffs' failure to file a notice of claim under the General
Municipal Law (63 AD3d 1574).   The court further concluded that
plaintiffs were not entitled to summary judgment because they had
failed to establish as a matter of law that the City's actions
were not narrowly tailored to meet a compelling interest.
           Three weeks later, the United States Supreme Court
issued its decision in Ricci v DeStefano (557 US 557 [2009]).      In
ruling for the petitioners, the Court concluded that an employer
could not act based on mere statistical disparity alone -
"[w]ithout some other justification, . . . race-based decision
making violates Title VII's command that an employer cannot take
adverse employment actions because of an individual's race" (id.
at 579).   The Court held that "before an employer can engage in
intentional discrimination for the asserted purpose of avoiding
or remedying an unintentional disparate impact, the employer must
have a strong basis in evidence to believe it will be subject to
disparate-impact liability if it fails to take the race-
conscious, discriminatory action" (id. at 585).
           At the direction of the Appellate Division, both sides
renewed their arguments at the Supreme Court and cross-moved for
summary judgment.   Supreme Court granted plaintiffs' motion for
summary judgment on the issue of liability.   The court concluded
that the City had failed to meet the strong basis in evidence
standard set forth in Ricci.    The Appellate Division affirmed


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                               - 6 -                          No. 7

stating:
                "We agree with the court that the City
                defendants did not have a strong basis
                in evidence to believe that they would
                be subject to disparate-impact liability
                if they failed to take race-conscious
                actions, i.e., allowing eligibility
                lists to expire, inasmuch as the
                examinations in question were job-
                related and consistent with business
                necessity"
(Margerum v City of Buffalo, 83 AD3d 1575, 1576 [4th Dept 2011]).
           With liability established, the trial court proceeded
with a bench trial on damages culminating in a judgment awarding
plaintiffs $2,610,170 in economic damages and $255,000 in
emotional distress damages.   The Appellate Division reduced the
economic damages, yielding a final judgment of $1,621,007.    This
Court granted leave to appeal to both plaintiffs and the City.
           Preliminarily, we reject the City's argument for
dismissal on the basis of plaintiffs' failure to file a notice of
claim prior to commencement of this action.   General Municipal
Law § 50-e (1) (a) requires service of a notice of claim within
90 days after the claim arises "[i]n any case founded upon tort
where a notice of claim is required by law as a condition
precedent to the commencement of an action or special proceeding
against a public corporation." General Municipal Law § 50-i (1)
precludes commencement of an action against a city "for personal
injury, wrongful death or damage to real or personal property
alleged to have been sustained by reason of the negligence or
wrongful act of such city," unless a notice of claim has been

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served in compliance with section 50-e.   The Appellate Division
departments addressing the issue have determined that the General
Municipal Law does not encompass a cause of action based on the
Human Rights Law and "[s]ervice of a notice of claim is therefore
not a condition precedent to commencement of an action based on
the Human Rights Law in a jurisdiction where General Municipal
Law   §§ 50-e and 50-i provide the only notice of claim criteria"
(Picciano v Nassau Cty. Civ. Serv. Commn., 290 AD2d 164, 170 [2d
Dept 2001]; see Sebastian v New York City Health & Hosps. Corp.,
221 AD2d 294, 294 [1st Dept 1995]; Palmer v City of New York, 215
AD2d 336, 336 [1st Dept 1995]).   Human rights claims are not tort
actions under 50-e and are not personal injury, wrongful death,
or damage to personal property claims under 50-i.   Nor do we
perceive any reason to encumber the filing of discrimination
claims.   Accordingly, we conclude that there is no notice of
claim requirement here.
            As to liability, we do not believe that this is an
issue that should have been decided at the summary judgment
stage.    In Ricci v DeStefano, the United States Supreme Court
held that before taking race-based action, "the employer must
have a strong basis in evidence to believe it will be subject to
disparate-impact liability if it fails to take the race-
conscious, discriminatory action" (557 US at 585) (emphasis
added).   As both parties agree, the Ricci standard governs.      We
have consistently held that the standards for recovery under the


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New York Human Rights Law are in nearly all instances identical
to Title VII and other federal law (see, e.g. Forrest v Jewish
Guild for the Blind, 3 NY3d 295, 305 n. 3 [2004]; Rainer N.
Mittl, Ophthalmologist, P.C. v New York State Div. of Human
Rights, 100 NY2d 326, 330 [2003]).
          In United States v Brennan (650 F3d 65 [2d Cir 2011]),
the Second Circuit cautioned against allowing a defendant to rely
on after-acquired evidence to buttress a race-based decision,
noting that the Ricci Court "considered only what the city knew
at the time it made its decision," and explaining:
                "The rationale underlying Ricci,
                moreover, confirms that the evidence is
                to be gauged at the time of the race -
                or sex-conscious employer action. The
                strong-basis-in-evidence standard is
                intended to 'strike a balance' between
                the Title VII provisions concerning
                disparate treatment and disparate
                impact, so that employers make the right
                decisions in the first place"
(id. at 111).
          In this case, the issue of liability turns on the
factual circumstances behind the City's actions, the strength of
its justifications and its motivations.   It is undisputed that
the plaintiffs here made out a prima facie case of
discrimination, as the City chose not to promote white candidates
from the eligibility list.   The burden then shifted to the City
to prove that it had "a strong basis in evidence to justify its
race conscious action"   (see Christopher v Adam's Mark Hotels,
137 F3d 1069, 1071 [8th Cir 1998] ["We proceed with caution when

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                                 - 9 -                          No. 7

deciding whether summary judgment is appropriate in employment
discrimination cases because intent is usually a central issue"];
and see St. Mary's Honor Ctr. v Hicks, 509 US 502, 507-508
[1993]; McDonnell Douglas Corp. v Green, 411 US 792, 802 [1973];
Forrest, 3 NY3d at 328 ["Whether or not these changes occurred as
a result of the grievances filed by appellant would arguably be a
question of fact for the jury.    Further, whether or not appellant
was terminated as a result of her grievances and for filing a
complaint in September 1994 with the EEOC and New York City Human
Rights Commission would also arguably be questions for the
jury"]).
           Given the nature of the matter, the City's litigation
posture in the MOCHA court cannot be taken at face value.      There
must be a credibility assessment of the City's position as to the
validity of the examinations, the prospects in the federal
litigation, and the reasons for its decision to expire the
promotion eligibility lists.   We know that Matarese decided to
let the promotion eligibility lists expire in 2005 and 2006.
What we do not know is why.    There are differences between
Matarese's testimony from 2006 and his testimony from 2010.     The
October 25, 2006 testimony, given while the MOCHA litigation was
pending, is vague, and mostly focuses on his desire to undo the
racial imbalance in the fire department.   Matarese's affidavit,
dated January 20, 2010, explicitly cites the advice of the City's
expert, Dr. Nancy Abrams - that there was a substantial risk that


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the MOCHA plaintiffs would prevail in federal court - as the
City's reason for allowing the lists to expire.   In light of
Brennan (650 F3d at 111), the facts thus far ascertained are
insufficient to determine what the City's intentions were at the
time that the lists were expired.
          Based on the record before us, we conclude that whether
the City had "a strong basis in evidence to believe it [would] be
subject to disparate-impact liability" at the time that it
terminated the promotion eligibility lists while the MOCHA
litigation was still pending raises issues of fact that cannot be
determined on motions for summary judgment.
          Accordingly, the order of the Appellate Division should
be modified, without costs, by remitting to Supreme Court for
further proceedings in accordance with this opinion, and, as so
modified, affirmed.




                             - 10 -
Margerum v City of Buffalo
No. 7




READ, J. (CONCURRING):
          The threshold question on this appeal is whether a
timely notice of claim was a condition precedent to plaintiffs'
lawsuit alleging that the City of Buffalo violated the Human
Rights Law.   I agree with my colleagues that sections 50-e and
50-i of the General Municipal Law are more naturally read to
exclude plaintiffs' claims from the notice-of-claim requirements
generally applicable to suits against governmental entities.   I


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                                - 2 -                          No. 7
write separately simply to highlight an inconsistency in New York
law, which the Legislature might choose to address.
           We have held that an employment discrimination claim
brought against a county under the Human Rights Law is subject to
County Law § 52 (1)'s notice-of-claim requirement (Mills v County
of Monroe, 89 AD2d 776 [4th Dept 1982], affd 59 NY2d 307, 309
[1982], cert denied 464 US 1018 [1983], overruled in part on
other grounds by Felder v Casey, 487 US 131 [1988]; see also
Matter of Freudenthal v County of Nassau, 99 NY2d 285, 292-293
[2003]).   Section 52 (1) is worded similarly, but not
identically, to section 50-i.
           In Mills, we observed that "the State's notice
requirements are [not] antithetical to the policy underlying the
civil rights laws . . . [N]otice of claim requirements in this
State serve an important State interest.   Requiring notice allows
a governmental subdivision a meaningful opportunity to
investigate in a timely manner the circumstances that gave rise
to a claim" (id. at 310).   There are certainly reasons why the
Legislature might nonetheless choose to treat civil rights
actions differently, as this opinion suggests; however, it is
hard to believe that the Legislature ever intended to create a
situation where an action brought against the County of Erie
alleging violations of the Human Rights Law would require a
notice of claim as a condition precedent to suit, while the same
type of action brought against the City of Buffalo would not.


                                - 2 -
Margerum v City of Buffalo
No. 7




RIVERA, J.(concurring in part and dissenting in part):
            I agree, albeit for different reasons, that plaintiffs
are not entitled to summary judgment on the issue of liability
under the New York State Human Rights Law ("Human Rights Law").
In my opinion, an employer's rejection of employment criteria in
order to avoid disparate impact does not constitute statutorily
proscribed intentional discrimination.   As a consequence, the
plaintiffs' disparate treatment claims are without merit and
should be dismissed, and the case remitted for consideration of
the plaintiffs' remaining claims.   Moreover, I disagree with the
majority that the "strong basis in evidence" standard set forth
in Ricci v DeStefano (557 US 557 [2009]) applies to the parties'
dispute.    That standard undermines the legislative purpose and
stated equal opportunity goals of our Human Rights Law and we
should reject it outright.   I write separately to explain what I
consider to be the proper approach to plaintiffs' Human Rights
Law claims.1
            New York State is a pioneer in addressing
discrimination at the workplace.    In 1945, two decades before the

        1
       Plaintiffs' challenges under the state constitution are
not at issue in this appeal and I express no opinion on the
merits of those claims.

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                                - 2 -                          No. 7
effective date of Title VII, New York enacted the Ives-Quinn
Anti-Discrimination Law, prohibiting discrimination on the basis
of race, creed, color or national origin (L 1945, ch 118).    After
its enactment as the first state statute to ban employment
discrimination in the private sector, the law was renamed in 1968
to the New York State Human Rights Law (L 1968, ch 958; see also
Susan D. Carle, How Myth-Busting About the Historical Goals of
Civil Rights Activism Can Illuminate Future Paths, 7 Stan J Civ
Rts & Civ Liberties 167, 173 [2011]).   Over time the legislature
expanded the law's coverage to provide maximum protection to New
Yorkers, by prohibiting discrimination on the basis of age,
sexual orientation, military status, sex, disability,
predisposing genetic characteristics, marital status, and
domestic violence victim status2 (L 1975, ch 803; L 2002, ch 2; L
2003, ch 106; L 2010 ch 196).
          The legislature intended for the Human Rights Law to
protect "the public welfare, health and peace of the people" of
the state of New York, "in fulfillment of the provisions of the
constitution of this state concerning civil rights[]" (Executive


     2
       Under Human Rights Law § 296, it is an unlawful
discriminatory practice "[f]or an employer or licensing agency,
because of an individual's age, race, creed, color, national
origin, sexual orientation, military status, sex, disability,
predisposing genetic characteristics, marital status, or domestic
violence victim status, to refuse to hire or employ or to bar or
to discharge from employment such individual or to discriminate
against such individual in the compensation or in terms,
conditions or privileges of employment" (Executive Law § 296 [1]
[a]).

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                               - 3 -                           No. 7
Law § 290 [2]).   As part of the legislative findings and
statutory purpose, the Human Rights Law declares
          "the state has the responsibility to act to assure,
          inter alia, that every individual within this state is
          afforded an equal opportunity to enjoy a full and
          productive life and the failure to provide such equal
          opportunity,. . . not only threatens the rights and
          proper privileges of its inhabitants but menaces the
          institutions and foundation of a free democratic state
          and threatens the peace, order, health, safety and
          general welfare of the state and its inhabitants"
(Executive Law § 290 [3]; see also State Div. of Human Rights v
Kilian Mfg. Corp., 35 NY2d 201, 207 [1974]).
          From its original enactment, the legislature adopted
the lexicon of "rights-based guarantees" and declared "[t]he
opportunity to obtain employment without discrimination. . . to
be a civil right"3 (Executive Law § 291 [1]).   Since 1945, the
legislature has amended the civil rights provision of the Human
Rights Law several times, and on each occasion extended the
provision's anti-discrimination protections (see L 1975, ch 803
[extending the prohibition against discrimination to include
discrimination on the basis of age or marital status], and L
2002, ch 2 [extending the prohibition against discrimination to



     3
       The civil rights provision of the Human Rights Law also
recognizes as a civil right "[t]he opportunity to obtain
education, the use of places of public accommodation and the
ownership use and occupancy of housing accommodation and
commercial space" (Executive Law § 291 [2]). It further declares
that "t]he opportunity to obtain medical treatment of an infant
prematurely born alive in the course of an abortion shall be the
same as the rights of an infant born spontaneously" (Executive
Law § 291 [3]).

                               - 3 -
                                 - 4 -                        No. 7
include discrimination on the basis of sexual orientation], and L
2003, ch 106 [extending the prohibition against discrimination to
include discrimination on the basis of military status], and L
2010 ch 196 [extending the prohibition against discrimination to
include discrimination on the basis of disability]).
           Further amendments to the Human Rights Law have
expanded rather than contracted its scope, another indicator of
the legislative intent to ensure broad coverage of the
protections generally afforded under the statute (see e.g.
Executive Law § 296 [1] [a], as amended by L 1975, ch 803 [adding
prohibition against employment discrimination on the basis of
marital status]; Executive Law § 292 [21], as amended by L 1979,
ch 594 [expanding scope of Human Rights Law protection by
broadening range of disabilities within coverage]; Executive Law
§ 298-a, as amended by L 1975, ch 662 [amending the Human Rights
Law to reach acts of discrimination occurring outside the
state]).
           Undeniably, the statute is an expression of New York
State's commitment to equality within society, based on
antidiscrimination principles.    It reflects, what this Court has
recognized is the "State's strong and important public policy
against discrimination" (New York Inst. of Tech. v State Div. of
Human Rights, 40 NY2d 316, 324-325 [1976]).
           The Court has broadly interpreted the Human Rights Law
consistent with the statutory mandate that "[t]he provisions of


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                                - 5 -                          No. 7
the [Human Rights Law] shall be construed liberally for the
accomplishment of [its] purposes" (Executive Law § 300; see e.g.
Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,
183 [1978] [liberal construction of Human Rights Law guided
determination of whether substantial evidence supported decision
of New York Human Rights Division]; City of Schenectady v State
Div. of Human Rights, 37 NY2d 421, 428 [1975] [relying on liberal
construction of the Human Rights Law to reject argument that City
and Police Department should not be liable where independent
board they created discriminated on the basis of sex]; New York
Inst. of Tech., 40 NY2d at 324-325 [liberal construction
supported granting Human Rights Division power to grant professor
tenure]).   Indeed, it is "the duty of the courts to make sure
that the Human Rights Law works and that the intent of the
legislature is not thwarted by a combination of strict
construction of the statute and a battle with semantics" (City of
Schenectady, 37 NY2d at 428).   To that end, the Court has held
that "an employment practice neutral on its face and in terms of
intent which has a disparate impact upon a protected class of
persons violates the Human Rights Law unless the employer can
show justification for the practice in terms of employee
performance" (People v NYC Transit Authority, 59 NY2d 343, 348-
349 [1983], citing Matter of Sontag v Bronstein 33 NY2d 197, 201
[1973]; City of Schenectady, 37 NY2d at 429, citing New York
State Div. of Human Rights v New York-Pennsylvania Professional


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                                 - 6 -                          No. 7
Baseball League, 36 AD2d 364, 367 [4th Dept 1971]).
             As a precursor to the 1964 Civil Rights Act, the Human
Rights Law is not modeled on Title VII, and has certain
significant distinctions that extend its coverage beyond that of
Title VII.    For example, the Human Rights Law prohibits
employment discrimination on additional grounds of sexual
orientation, predisposing genetic characteristics, marital
status, domestic violence victim status, and arrest or criminal
accusation record (compare Executive Law § 296 [1] [a], [16] with
42 USC § 2000e-2).    In addition, the Human Rights Law applies to
more employers than does Title VII.      The Human Rights Law covers
employers with at least four employees, while Title VII is
limited to employers with at least fifteen employees (compare
Executive Law § 292 [5] with 42 USC § 2000e [b]).      However, Title
VII affords greater financial relief than the Human Rights Law by
providing for punitive damages and attorney's fees (42 USC §
1981a [b] [1] [providing for punitive damages]; 42 USC § 2000e-5
[k] [providing for attorney's fees]).
             Nevertheless, the Human Rights Law and Title VII are
generally consistent, with similar language and goals.      Indeed,
the Court has recognized that "the standards for recovery under
[the Human Rights Law] are in accord with Federal standards under
title VII" (Ferrante v American Lung Assn., 90 NY2d 623, 629
[1997]).   The Court has concluded that "[b]ecause both the Human
Rights Law and Title VII address the same type of discrimination,


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                                 - 7 -                          No. 7
afford victims similar forms of redress, are textually similar
and ultimately employ the same standards of recovery, federal
case law in this area proves helpful" (Forrest v Jewish Guild for
the Blind, 3 NY3d 195, 305 n 3 [2004], citing Matter of
Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, 26
[2002]).
           Here, however we are not presented with a federal
standard recognized previously by our courts as "in accord" with
the Human Rights Law (Ferrante, 90 NY2d at 629).     Rather, the
question in this appeal is what standard applies to the
plaintiffs' state law claims.    Relying on the Court's prior
application of federal law, but without significant analysis of
the propriety of doing so in this case, the majority agrees with
the courts below that the "strong basis in evidence" standard
applicable under Title VII as announced in Ricci should also
apply to the plaintiffs' Human Rights Law claims (Maj Op at 7-8).
However, before adopting this standard we must carefully
scrutinize the text and intended purpose of the Human Rights Law
to ensure that the federal approach under Title VII is best
suited to further our State's law and policy.
           In the past, the Court has "attempted to resolve
federal and state employment discrimination claims consistently"
(Ferrante, 90 NY2d at 629).     In light of the federal and state
statutory alignment and our Court's past treatment of federal
law, any departure from federal analysis requires close


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                                 - 8 -                         No. 7
consideration.   Our rejection of the federal approach should be
limited to those rare cases where federal interpretations of
Title VII are at odds with, or undermine, the text or legislative
goals of the Human Rights Law.    For example, where the federal
standard contracts rather than expands the application of the
statute, or places the well-established legislative goal of equal
opportunity in jeopardy, federal case law provides little
guidance.   Moreover, if the federal standard is a significant
break from our prior approach we must consider if avoidance of
the federal analysis is warranted as a matter of state law.
            In my opinion, the instant appeal presents the rare
case where we must reject the federal "strong basis in evidence"
standard because it is in contravention of the legislative intent
and goals of the Human Rights Law to ensure equal opportunity at
the workplace.   The federal approach essentially subordinates the
interests of plaintiffs alleging disparate impact to those of
plaintiffs claiming disparate treatment.   According to the
majority and dissent in Ricci, the standard conceives of a
contest between individual claims of intentional discrimination,
i.e. disparate treatment claims, and efforts to avoid liability
for employment practices with disparate effects, i.e. disparate
impact claims (see Ricci 557 US at 580-82 [Kennedy, J.]).     As the
dissent in Ricci argues, this is an incorrect view of Title VII
and federal case law (Ricci, 557 US at 624 [Ginsburg, J.,
dissenting] ["Neither Congress' enactments nor this Court's Title


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                               - 9 -                            No. 7
VII precedents. . . offer even a hint of 'conflict' between an
employer's obligations under the statute's disparate-treatment
and disparate impact provisions"]).    I too find that there is no
contest between these two branches of discrimination theory, and
therefore would find that the standard has no place in our
interpretation of the Human Rights Law.
          Antidiscrimination law posits just the opposite of the
standard as conceived in Ricci, because Ricci treats the choice
to reject criteria that has discriminatory results as an exercise
in wrongful discrimination, while antidiscrimination law focuses
on a society free of the mechanisms and tools which would result
in disparate outcomes.   Antidiscrimination laws and statutes
aimed at achieving equal opportunity in employment, like the
Human Rights Law, are based on the foundational principle that a
workplace conceived and established in accordance with practices
that result in disparate effects is harmful and unlawful.    Hence,
claims that rely on the reenforcement of employment criteria that
results in a disparate impact are devoid of a sound legal or
public policy grounding.
          Under the Human Rights Law, no individual has a stake
in a workforce selected and maintained through the use of
criteria that result in proscribed disparities.   A workforce so
constituted is antithetical to the statute's concept of equal
opportunity, and the right to employment purged of discrimination
(Executive Law § 296).   Moreover, a workplace structured to


                               - 9 -
                               - 10 -                          No. 7
further inequality violates the Human Rights Law because it
"threatens the rights and proper privileges of [New York State's]
inhabitants [and] menaces the institutions and foundation of a
free democratic state and threatens the peace, order, health,
safety and general welfare of the state and its inhabitants"
(Executive Law § 290 [3]).    Since an employer does not commit
statutorily proscribed intentional discrimination when the
employer seeks to reduce and eliminate the causes of inequality
at the workplace, the Ricci standard cannot guide our resolution
of the issues presented in this appeal.
          Another reason why we should reject the federal
approach is because it discourages an employer's voluntary
compliance out of fear the employer will be unable to establish
"the strong basis in evidence" necessary to avoid liability for
disparate treatment claims.   By requiring more than prima facie
evidence of disparate impact established by statistical
disparities at the workplace, the standard imposes a heavy burden
on employers, which ultimately leads to employer inaction.
Obviously, the costs of litigation and the impact on municipal
functions puts significant pressure on a municipal employer to
avoid litigation.   As amici argue in support of the City,
"[p]rotracted employment litigation [] has a highly disruptive
effect on the provision of vital public services that goes well
beyond the havoc wrecked on the public fisc" (Brief for
International Municipal Lawyers Association as Amicus Curiae at


                               - 10 -
                              - 11 -                           No. 7
20).   Thus, the federal approach incentivizes employers to
maintain the status quo, and retain employment criteria
regardless of the disparate effects, in contravention of the
Human Rights Law's goals of ensuring "that every individual
within this state is afforded an equal opportunity to enjoy a
full and productive life" (Executive Law § 290 [3]), and
discrimination-free employment (Executive Law § 291 [1]).     Rather
than encourage employers to adopt tests and employment practices
which ensure equal access to jobs, the federal standard does just
the opposite.
           The appeal before us is an example of why the federal
standard is ill-suited to ensure compliance with the Human Rights
Law.   As the majority points out, the City of Buffalo has
historically discriminated in employment for jobs within the fire
and police departments (Maj Op at 2-3).   The consequences of its
actions were so severe and obvious that the United States
government sued to bring it in line with federal
antidiscrimination laws.   The remedial order enjoined the City
           "from. . . engaging in any practice with respect to
           hiring, assignment, promotion, transfer, or
           compensation which has the purpose or effect of
           discriminating against any employee with. . . the
           Buffalo Fire Department because of such individual's
           race, sex, or national origin, nor will they engage in
           any acts or practices which deny to [Blacks, Hispanics]
           or women equal employment opportunity"
(Final Decree and Order of November 23, 1979, at ¶ 1).
           When the City applied tests which resulted in racial
and ethnic disparities in promotional practices, it was sued by

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                               - 12 -                          No. 7
MOCHA.   In the course of defending these practices and tests, the
City was presented with opinions from its own expert and the
plaintiff's expert that the method used to validate the
examinations was flawed.   The City's expert concluded that "the
scientific evidence supporting the validity of [the examination]
was limited" and "it might not be in the City's best interest to
call [her] to testify."    She further concluded that there was a
substantial risk that the MOCHA plaintiffs would prevail. Faced
with a choice to continue using a promotion tool criticized as
flawed, or abandoning a test whose methodology was contested even
by the City's own expert, the Commissioner chose to forego any
further use of the eligibility list created based on the invalid
examination.
           The Commissioner's actions were in full compliance with
the Human Rights Law and disparate impact theory as adopted by
this Court (see Executive Law § 296; NYC Transit Authority, 59
NY2d at 348-349 [1983]; City of Schenectady, 37 NY2d at 429;
Bronstein, 33 NY2d at 201).    Yet, under the federal standard, the
City would be liable for employment discrimination if it fails to
establish "a strong basis in evidence that, had it not taken the
action, it would have been liable" for disparate impact
discrimination under Title VII (Ricci, 557 US at 563).    This is a
real possibility given the majority concludes that, despite the
existence of expert evidence of actionable disparate impact, the
City may be unable to establish the Commissioner's motives were


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                                - 13 -                          No. 7
nondiscriminatory in nature.    Thus, even though the City did not
incur liability in the MOCHA federal action, it is unclear
whether it will prevail in this case.4
             As a last point, I note that the federal standard has
the potential to create an untenable situation for employers sued
by different parties, under different theories, seeking
conflicting outcomes.    An employer could find itself taking
positions in litigation which appear contradictory, to its
detriment.    For example, here, the City defended the use of the
eligibility examinations in the federal lawsuit, even after it
had evidence from its own expert that the examination was flawed.
Nevertheless, the City argued in the instant case, in reliance on
that very same expert evidence, that the Commissioner allowed the
eligibility lists to expire because he believed the tests were
invalid. The plaintiffs in the state action understandably sought
to exploit these facially divergent positions, and challenged the
Commissioner's credibility based on the content of his statements
in the two lawsuits.    Indeed, the majority accepts that the
differences in the Commissioner's testimony in 2006 from that
provided in 2010, raises a question as to his motives.
             Aside from whether as a legal matter the City's
positions in the two lawsuits can be justified and harmonized, it


     4
       The federal district court concluded that the City
established that the 1998 examination was "job-related. . . and
consistent with business necessity" (M.O.C.H.A. Socy., Inc. v
City of Buffalo ["M.O.C.H.A. I"], No. 98-cv-99C, 2009 WL 604898
[WDNY Mar. 9, 2009], affd 689 F3d 263 [2d Cir 2012]).

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                                 - 14 -                             No. 7
is difficult to see how adoption of a standard that creates such
potential conflict is within the spirit of the Human Rights Law.
It seems a disservice to the goal of equal opportunity to expend
municipal and judicial resources in litigation that apparently
lacks legal merit.
            The Court has historically considered federal case law
in deciding questions regarding the proper interpretation and
application of the Human Rights Law.          We should continue to do so
in the future, except in the rarest of cases where the federal
approach undermines the clearly stated and well-established
purpose and goals of the Human Rights Law.         I believe the federal
standard adopted by the majority is not in accord with the
antidiscrimination equality principles upon which the Human
Rights Law is based, and, in contravention of the law, encourages
employers to retain invalid, discriminatory employment criteria.
*   *   *    *   *   *   *   *     *      *    *   *   *   *   *   *   *
Order modified, without costs, by remitting to Supreme Court,
Erie County, for further proceedings in accordance with the
opinion herein and, as so modified, affirmed. Opinion by Chief
Judge Lippman. Judges Read, Pigott and Abdus-Salaam concur,
Judge Read in a separate concurring opinion. Judge Rivera
concurs in part and dissents in part in an opinion. Judges Stein
and Fahey took no part.

Decided February 17, 2015




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