Dec 31, 2001 Employment Discrimination

New York City Enacts New Gender-Motivated Violence Act

In 2000, New York City enacted the Gender-Motivated Violence Act (“GMVA”), N.Y.C. Code § 8-101, et seq. The GMVA went into effect on December 19, 2000. While the GMVA has now been in effect for a year, it has not yet been the subject of any reported judicial decision.

The GMVA was enacted in response to United States v. Morrison, 120 S.Ct. 1740 (2000), in which the United States Supreme Court struck down a similar federal law (the Violence Against Women Act, 42 U.S.C. § 13981) as beyond the scope of the Constitutional powers that Congress had invoked in passing the federal law. New York City, believing itself free of similar restrictions, passed a modified version of that law as a City ordinance. See N.Y.C. Code § 8-902.

What is the GMVA?

The heart of the GMVA, N.Y.C. Code § 8-904, provides, “[A]ny person claiming to be injured by an individual who commits a crime of violence motivated by gender as defined in section 8-903 of this chapter, shall have a cause of action against such individual . . ..” Section 8-903 defines “crime of violence” as “an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law . . . if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges . . ..” Section 8-903 also provides that such an act is “motivated by gender” if it is “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” (Emphasis added.) The statute of limitations is seven years. N.Y.C. Code § 8-905. The full gamut of relief available under the New York City Human Rights Law is available to the successful GMVA plaintiff – back pay, compensatory damages, punitive damages, attorneys’ fees, and injunctive and declaratory relief. N.Y.C. Code § 8-904.

To state a claim under the GMVA, it appears that a plaintiff would have to prove acts (a) that constitute a misdemeanor or felony against the person, (b) that present a “serious risk of physical injury,” (c) that were engaged in because of the plaintiff’s gender, (d) that were engaged in due to an animus against the plaintiff’s gender, and (e) that result in injury.

The GMVA provides expressly that “random acts of violence unrelated to gender” are outside the scope of the ordinance. See N.Y.C. Code § 8-905(b) (“nothing in this chapter entitles a person to a cause of action for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender”). It follows that in order to prevail, a GMVA plaintiff would have to prove that the conduct at issue not only was a crime (felony or any misdemeanor, so long as it constitutes a crime against the person), but also that it was committed because of the plaintiff’s gender. Personal conflicts, unrelated to gender, do not give rise to liability under the GMVA.

The GMVA is silent as to whether proof that a crime was committed must be by the “beyond a reasonable doubt” standard generally applicable to criminal cases or the more lenient “preponderance of the evidence” standard. N.Y.C. Code § 8-906 says only that conviction of a crime is conclusive evidence in a GMVA case that a crime was committed. However, it is clear that proof that the crime was committed because of gender is established under the preponderance of the evidence standard. Id.

Why do employers in New York City need to know about the GMVA?

On its face, the GMVA does not appear to have much impact on workplace litigation. For example, sexual harassment cases generally do not involve violence, and when they do, proving sexual harassment does not require establishing that the acts at issue constituted a crime. Moreover, where the perpetrator of the harassment makes unwanted physical contact with the plaintiff, the victim usually will have a cause of action in tort for assault or battery. Therefore, most plaintiffs probably will be better off suing under Title VII, the New York State Human Rights Law, or the employment provisions of the New York City Human Rights Law than under the GMVA.

However, the GMVA is far from irrelevant to the workplace. For one thing, it is not at all clear that taking prompt, effective remedial action would constitute a defense to a GMVA claim, as it would to a hostile environment sexual harassment claim, where the gender-based violence occurs in the workplace under circumstances in which an employee might be able to impute respondeat superior liability to the employer. Nor is it clear that the defense available under the Workers’ Compensation exclusive remedy provision that would be available to the employer in a case where one employee commits acts of physical violence against another employee would defeat a GMVA action if the violence was motivated by gender-based animus.

For example, in a case where a supervisor sexually assaults a co-worker and the employer fires the supervisor immediately upon receipt of the victim’s complaint, ordinarily the employer would have a Workers’ Compensation exclusive remedy defense to the victim’s tort action, and a defense of prompt, effective remedial action to the victim’s sexual harassment action. It is not at all clear that those defenses would be valid as against a GMVA claim. In addition, the limitations period for GMVA claims is seven years. It is entirely possible that an employee who was the victim of gender-based violence in the workplace may surface years after the limitations period has expired on her sexual harassment and/or Workers’ Compensation claims, and years after all of the employer’s witnesses have scattered or lost their memory of relevant events. The victim might nonetheless have a viable cause of action under the GMVA that would be difficult to defend.

What can employers do to avoid liability under the GMVA?

Probably not much more than any ordinarily prudent employer already does to avoid liability for sexual harassment claims. The existence of a sound harassment-free workplace policy and any training efforts undertaken to implement that policy would likely go a long way toward helping the employer defend against efforts to attach liability to the employer for GMVA violations. Thus, the GMVA makes such policies even more important than ever before.

Moreover, the seven-year limitations period makes it more critical than ever for employers to get witness statements concerning possible acts of sexual harassment that involve physical contact, and to maintain good records concerning the location of former employees who may be needed as witnesses years after they cease working for the employer.