TA Worker Has Bias Liability

BY ARTHUR S. LEONARD | A state Supreme Court justice in Brooklyn ruled on February 13 that the city's ban on gender identity discrimination is binding on the New York City Transit Authority. Justice Robert J. Miller rejected a contrary ruling by another Brooklyn state trial judge in denying an attempt by a NYCTA employee to have a transgendered customer's harassment suit thrown out of court.

Tracy Bumpus, a transgendered woman, alleges encountering discrimination by a transit worker at Brooklyn's Nostrand Avenue A train station on July 19, 2006. According to her complaint, Bumpus was having trouble using her metrocard and asked a transit worker, later identified as Lorna Smith, for assistance.

Brooklyn court rules city laws protect transgendered subway customer

Smith, “using a loud voice, spoke a steady stream of discriminatory, transgender-phobic epithets in a pointed manner” toward Bumpus for about ten minutes, in the presence of other passengers, according to the harassment claim. Bumpus said she suffered further harassment from passengers who heard Smith's remarks.

Bumpus immediately contacted the Transit Authority to complain, and a supervisor followed up to find out what had happened. Just days later, however, when she was using the same station, Smith pointed her out to other transit employees and they all laughed at her, Bumpus alleges.

Bumpus filed a notice of claim with the Transit Authority, alleging negligent training, supervision, and retention, and attended a statutory hearing on her claim in December 2006, before filing her lawsuit in January 2007. Her initial complaint did not include Smith because Bumpus did not know her name, but that information surfaced later in the case and she was added as a defendant. The Transit Authority initiated disciplinary proceedings against Smith through the union grievance procedure, but Bumpus never attended the scheduled disciplinary hearings, so those charges were dropped.

The Appellate Division in Brooklyn recently upheld a motion judge's refusal to dismiss the claim against the Transit Authority. Smith filed her own motion to dismiss, arguing, among other things, that as an Authority employee she enjoyed immunity from liability under the city's Human Rights Law.

The state's highest court ruled in 1996 that the Transit Authority and its employees are subject to the city's Human Rights Law, but in 2000 the Legislature passed an amendment to the Public Authorities Law providing that “no municipality or political subdivision… shall have jurisdiction over any facilities of the… New York City Transit Authority… or of their activities or operations. The local laws… of a municipality or political subdivision, heretofore or hereafter adopted, conflicting with this title or any rule or regulation of … New York City Transit Authority or its subsidiaries, shall not be applicable to the activities or operation of the Authority.”

Since that amendment, state and federal trial courts have confronted the argument that members of the public and the Authority's own employees cannot file suit against it for violations of the city's Human Rights Law.

The state Human Rights Law, which clearly does apply to the Transit Authority, does not directly address gender identity discrimination, so Bumpus proceeded under the city law, amended in 2002 to add explicit gender identity protection. Smith's motion to dismiss relied on a 2007 decision by Justice Lawrence Knipel, who also sits on the Brooklyn Supreme Court bench, specifically ruling that the 2000 amendment meant that the Transit Authority could not be sued under the city law.

Disagreeing, Miller noted that several trial courts in other counties, as well as some federal trial courts, had adopted a contrary reading of the 2000 statute, focusing on the phrase “conflicting with this title.” According to Miller, and the other judges whose reading he relied on, applying the city Human Rights Law presents no “conflict” with Transit Authority operations.

“The Court here finds that the NYCTA is not exempt from local laws that do not interfere with the function and purpose of the Transit Authority,” he wrote.

“The complaint alleges that plaintiff was harassed and humiliated by an employee of the NYCTA merely because she is a transgender woman and was present in the subway station asking for assistance and waiting for a train,” Miller continued. “The Human Rights Law affords protection to transgender people in New York City. By riding the subway, a transgender person doesn't become less of a person and lose the protection of the Human Rights Law. Clearly, the discriminatory behavior of the transit worker is not within the function of the NYCTA.”

Miller also noted that the Transit Authority had conceded that if Smith made the statements attributed to her, she would be subject to discipline for violation of its own rules, an acknowledgment that applying the Human Rights Law presented no conflict with the agency's normal operations.

Bumpus is represented in her lawsuit by Housing Works attorneys Robert F. Bacigalupi and Ignacio Jaureguilorda.



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