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Thoreson v. Penthouse International, Ltd.

80 N.Y.2d 490 Court N.Y. Decision date 1992-12-21 English

Delivered by Hancock, Jr., J.

Contents

Majority

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Marjorie L. Thoreson, Also Known as Anneka DiLorenzo, Appellant-Respondent, v Penthouse International, Ltd., et al., Respondents-Appellants.
Argued November 17,1992;
decided December 21, 1992
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POINTS OF COUNSEL
Murray Schwartz, New York City, and Davida S. Perry for appellant-respondent.
I. In addition to the language alone being adequate, the type of broad language in section 297 (9) of the Executive Law has been interpreted by New York courts and other courts to permit punitive damages, although not specifically provided for in the statutes interpreted. (New York State Bankers Assn, v Albright, 38 NY2d 430 ; Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114 ; Murphy v American Home Prods. Corp., 58 NY2d 293 ; Matter of Albano v Kirby, 36 NY2d 526 ; Department of Welfare v Siebel, 6 NY2d 536 , 361 US 535 ; Matter of McNerney v City of Geneva, 290 NY 505 ; Price v Price, 69 NY2d 8 ; Matter of Bath & Hammondsport R. R. Co. v New York State Dept, of Envtl. Conservation, 73 NY2d 434 ; Green v Fischbein Olivieri Rozenholc & Badillo, 119 AD2d 345 ; Matter of Di Brizzi [Proskauer], 303 NY 206 .) II. Principles of statutory construction compel a finding that section 297 (9) of the Executive Law authorizes an award of punitive damages. (Surace v Danna, 248 NY 18 ; People v Ahearn, 196 NY 221 ; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677 ; Matter of Capone v Weaver, 6 NY2d 307 ; Matter of Meyer, 209 NY 386 ; Matter of Petterson v Daystrom Corp., 17 NY2d 32 ; Sanders v Winship, 57 NY2d 391 ; People v Ryan, 274 NY 149 ; Ferres v City of New Rochelle, 68 NY2d 446 ; People v White, 73 NY2d 468 .) III. Common-law tort remedies available to victims of sexual harassment are cumulative and were intended by the Legislature to be subsumed within section 297 (9) of the Executive Law. (Matter of Ziegler v Cassidy’s Sons, 220 NY 98 ; People v King, 61 NY2d 550 ; Hechter v New York Life Ins. Co., 46 NY2d 34 ; Micari v Mann, 126 Misc 2d 442 .)
Proskauer Rose Goetz & Mendelsohn, New York City (Bettina B. Plevan and Myron D. Rumeld of counsel), and Carb, Luria, Glassner, Cook & Kufeld, New York City (Jeffrey H. Daichman of counsel), for respondents-appellants.
I. The evidence did not support a finding of sexual harassment under the New York State Human Rights Law. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709 , 109 AD2d
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1111 ; Watts v New York City Police Dept., 724 F Supp 99 ; Carrero v New York City Hous. Auth., 890 F2d 569 ; Koster v Chase Manhattan Bank, 687 F Supp 848 ; Downes v Federal Aviation Admin., 775 F2d 288 ; Jones v Flagship Inti., 793 F2d 714 , 479 US 1065 ; Reichman v Bureau of Affirmative Action, 536 F Supp 1149 ; Manno v Mutual Benefit Health & Acc. Assn., 18 Misc 2d 80 ; Austin Instrument v Loral Corp., 35 AD2d 387 , 29 NY2d 124 ; Meritor Sav. Bank v Vinson, 477 US 57 .) II. The award of compensatory damages is not supported by the evidence. (Matter of Empbanque Capital Corp. v White, 158 AD2d 686 ; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207 ; Batavia Lodge No. 196 v New York State Div. of Human Rights, 35 NY2d 143 ; Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442 .) III. Punitive damages are not available under the New York Human Rights Law. (Tyler v Bethlehem Steel Corp., 958 F2d 1176 ; Conan v Equitable Capital Mgt. Corp., 774 F Supp 209 ; Drinkhouse v Parka Corp., 3 NY2d 82 ; de Minicis v 148 E. 83rd St., 20 AD2d 236 , 15 NY2d 432 ; Brody v Leamy, 90 Misc 2d 1 ; Broughton v Dona, 101 AD2d 897 ; Murphy v American Home Prods. Corp., 58 NY2d 293 ; Matter of State Div. of Human Rights v Luppino, 35 AD2d 107 ; Raymond Concrete Pile Co. v Federation Bank & Trust Co., 288 NY 452 ; People ex rel. Capalongo v Howard, 87 AD2d 242 .)
George W. Madison, New York City, Herbert Semmel and Ellen M. Saideman for Association of the Bar of the City of New York, amicus curiae.
I. Judicial awards of punitive damages are a necessary and integral part of the broad remedies authorized by the Legislature to assure equal opportunity and the elimination of sexual harassment and other forms of discrimination. (Sabol & Rice v Poughkeepsie Galleria Co., 175 AD2d 555 ; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196 ; Walker v Sheldon, 10 NY2d 401 ; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392 ; Dias v Sky Chefs, 919 F2d 1370 ; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207 ; Matter of Consolidated Edison Co. v New York State Div. of Human Rights, 77 NY2d 411 ; Matter of Lutheran Social Servs. v State Div. of Human Rights, 142 AD2d 950 , 74 NY2d 824 ; Matter of New York State Dept, of Correctional Servs. v McCall, 109 AD2d 953 ; Kathleen Foley, Inc. v Gulf Oil Corp., 12 AD2d 644 , 10 NY2d 859 .) II. Punitive damages in judicial enforcement of the Human Rights Law are consistent with the statutory scheme
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of separate enforcement mechanisms through the courts and the Division of Human Rights. (Murphy v American Home Prods. Corp., 58 NY2d 293 ; Matter of New Jersey Fid. & Plate Glass Ins. Co. v Van Schaick, 236 App Div 223 , 261 NY 521 ; Seitzman v Hudson Riv. Assocs., 143 Misc 2d 1068 .)
Dorchen A. Leidholdt, New York City, and Wendy C. Lecker for Women’s Bar Association of the State of New York and another, amici curiae.
I. The Court below correctly sustained the trial court’s finding of quid pro quo sexual harassment. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709 ; Tomkins v Public Serv. Elec. & Gas Co., 568 F2d 1044 ; Barnes v Costle, 561 F2d 983 ; Watts v New York City Police Dept., 724 F Supp 99 ; Henson v City of Dundee, 682 F2d 897 ; Foster v Chase Manhattan Bank, 687 F Supp 848 ; Hicks v Gates Rubber Co., 833 F2d 1406 ; Chamberlin v 101 Realty, 915 F2d 777 ; Lipsett v University of Puerto Rico, 864 F2d 881 ; Barbetta v Chemlawn Servs. Corp., 669 F Supp 569 .) II. The record supports a finding that defendant subjected plaintiff to a sexually hostile work environment. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709 ; Meritor Sav. Bank v Vinson, 477 US 57 ; Bundy v Jackson, 641 F2d 934 ; Lopez v S.B. Thomas, Inc., 831 F2d 1184 ; Bennett v New York City Dept, of Corrections, 705 F Supp 979 ; Danna v New York Tel. Co., 752 F Supp 594 ; Ellison v Brady, 924 F2d 872 ; Snell v Suffolk County, 782 F2d 1094 ; Rogers v Equal Empl. Opportunity Commn., 454 F2d 234 ; Andrews v City of Philadelphia, 895 F2d 1469 .) III. Plaintiff provided sufficient evidence that defendant’s harassment was unwelcome. (Meritor Sav. Bank v Vinson, 477 US 57 ; Bundy v Jackson, 641 F2d 934 ; Henson v City of Dundee, 682 F2d 897 ; Snell v Suffolk County, 782 F2d 1094 ; Campbell v Kansas State Univ., 780 F Supp 755 ; Hicks v Gates Rubber Co., 833 F2d 1406 ; Babcock v Frank, 729 F Supp 279 ; Barbetta v Chemlawn Servs. Corp., 669 F Supp 569 ; Rabidue v Osceola Ref. Co., 805 F2d 611 ; Price Waterhouse v Hopkins, 490 US 228 .) IV. Plaintiff did not "assume the risk” of a sexually hostile workplace. (Bennett v Corroon & Black Corp., 845 F2d 104 ; Walker v Ford Motor Co., 684 F2d 1355 ; Robinson v Jacksonville Shipyards, 760 F Supp 1486 .) V. The compensatory damage award should be affirmed. (Claridge Gardens v Menotti, 160 AD2d 544 ; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207 ; Batavia Lodge No. 196 v New York State Div. of Human Rights, 35 NY2d 143 ; Cullen v Nassau County Civ. Serv.
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Commn., 53 NY2d 492 ; Matter of Club Swamp Annex v White, 167 AD2d 400 ; Matter of Board of Educ. v McCall, 108 AD2d 855 ; Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442 ; Matter of Northern Orchard Co. v State Div. of Human Rights, 161 AD2d 846 .)
Nadine Taub, of the New Jersey Bar, admitted pro hac vice, for Women’s Rights Litigation Clinic of Rutgers Law School-Newark and another, amici curiae.
I. The trial court’s findings of sexual harassment, affirmed by the Court below, must be upheld by this Court. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709 , 109 AD2d 1111 , 66 NY2d 605 ; Matter of Salvatore v New York State Div. of Human Rights, 118 AD2d 715 ; Matter of State Univ. of New York v State Human Rights Appeal Bd., 81 AD2d 688 , 55 NY2d 896 ; Claridge Gardens v Menotti, 160 AD2d 544 ; Simon v Electrospace Corp., 28 NY2d 136 ; Padula v State of New York, 48 NY2d 366 .) II. Plaintiff’s ultimate compliance with defendants’ sexual demands in no way diminishes her right to recover. (Meritor Sav. Bank v Vinson, All US 57; Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492 ; Micari v Mann, 126 Misc 2d 422 ; Roy v Hartogs, 85 Misc 2d 891 ; Laurie Marie M. v Jeffrey T. M, 159 AD2d 52 .) III. Interpretations of the New York Executive Law that deny compensation to victims of sexual harassment who have engaged in previous sexual activity are based on archaic stereotypes and must be rejected. (Meritor Sav. Bank v Vinson, All US 57; Bums v McGregor Elec. Indus., 955 F2d 559 ; People v Crawford, 143 AD2d 141 ; Bundy v Jackson, 641 F2d 934 .)

OPINION OF THE COURT

This appeal presents a question of statutory construction which we have not addressed: whether a person aggrieved by a discriminatory practice in violation of the Human Rights Law may recover punitive damages in a court action brought pursuant to Executive Law § 297 (9). Based on our analysis of the statutory language and the relevant legislative history, we conclude that such damages are not recoverable.

I

Plaintiff — alleging sexual harassment in violation of the Human Rights Law — brought an action in Supreme Court pursuant to Executive Law § 297 (9) against her former em

II

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ployer, Penthouse International, Ltd., and its chairman and principal shareholder, Robert Guccione, the publisher of Penthouse Magazine. After a nonjury trial, the court found that defendants had exploited plaintiff as an employee by, among other things, coercing her, as an implicit condition of her employment, into having sexual liaisons with two of Guccione’s business associates. The court granted plaintiff $60,000 for compensatory and $4,000,000 for punitive damages.

A majority at the Appellate Division found sufficient evidence in the record to support the conclusion of Supreme Court that plaintiff was the victim of quid pro quo sexual harassment and, with one Justice dissenting, affirmed the award of compensatory damages (see, Thoreson v Penthouse Intl., 179 AD2d 29 , 31). The Appellate Division, however, held unanimously that punitive damages were not recoverable and vacated that part of the award. Both plaintiff and defendants have appealed to this Court by leave of the Appellate Division.

We agree with the majority at the Appellate Division that " 'the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses’ ” (id., at 31 [quoting Claridge Gardens v Menotti, 160 AD2d 544 , 544-545]). Based on our review of the record, we hold, as did the Appellate Division majority, "that the totality of the circumstances, as perceived by the Trial Justice from the testimony, [permits] the conclusion that plaintiff was the victim of quid pro quo sexual harassment” (id., at 31) and that "it cannot be said that the amount of the compensatory damages awarded by the Trial Justice is without foundation” (id., at 31). We, therefore, affirm the compensatory damages award. Further discussion on this point is unnecessary.

The only question to be addressed is whether punitive damages are permissible in a statutory action under Executive Law § 297 (9). For reasons which follow, we concur with the Appellate Division that such damages are not permitted and, accordingly, affirm that portion of the order also.

I

n approaching the subject of punitive damages in a court action for Human Rights Law violations, it must be understood that we are discussing an action to enforce substantive

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legal rights and duties created solely by statute. When it enacted Executive Law § 297 (9) to provide a judicial remedy for discriminatory practices in addition to the existing administrative remedies, the Legislature created a new statutory cause of action not previously cognizable at common law (see, Murphy v American Home Prods. Corp., 58 NY2d 293 , 307; Matter of State Div. of Human Rights v Luppino, 35 AD2d 107 , 112 [Hopkins, J., dissenting in part], revd sub nom. State Comma, for Human Rights v Speer, 29 NY2d 555 ).

Thus, to determine whether punitive damages are legally permissible in a court action we look to the statute — not to whether the nature of the wrong alleged would permit recovery under traditional concepts of punitive damages in tort law (see, e.g., Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196 , 203-204). It is settled that if an aggrieved person seeks relief for discriminatory practices before the State Division of Human Rights rather than in a court of law, punitive damages are not allowed (see, Executive Law § 297 [4] [c]; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207 ,. 216). The precise question before us, then, is: did the Legislature, in creating the cause of action in Executive Law § 297 (9), intend that an aggrieved person could recover punitive damages in a court action when, if that person had chosen the administrative alternative, such damages could not be recovered?

In searching for the legislative intent we, of course, first examine the words of the statute both for their meaning as used in the specific section and in their context as part of the statutory scheme (see, Price v Price, 69 NY2d 8 , 13). Here, the particular language to be interpreted is:

"Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter” (Executive Law § 297 [9] [emphasis added]).

From the statutory language, it is evident that the word "damages” relates to one of the "remedies” for which a person "aggrieved by” an unlawful practice "shall have a cause of

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action”. Nothing in the statute indicates that the Legislature, in making legal remedies available in a judicial proceeding, contemplated that the courts would grant relief for a purpose other than alleviating or rectifying the harm done to the person aggrieved by the discrimination. Certainly, no language suggests that the Legislature intended to authorize punitive relief in the nature of a fine for the purpose of punishing the wrongdoer or deterring similar conduct by others. Punitive damages, it has been held, are to:
"serve as a warning to others. They are intended as punishment for gross misbehavior for the good of the public and have been referred to as 'a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine’. Punitive damages are allowed on the ground of public policy and not because the plaintiff had suffered any monetary damages for which he is entitled to reimbursement; the award goes to him simply because it is assessed in his particular suit. The damages may be considered expressive of the community attitude towards one who wilfully and wantonly causes hurt or injury to another” (Reynolds v Pegler, 123 F Supp 36 , 38 [SD NY 1954], affd 223 F2d 429 [2d Cir 1955], cert denied 350 US 846 [quoted in Toomey v Farley, 2 NY2d 71 , 83]; see, Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196 , 203-204, supra).

In administrative proceedings before the State Division, the purpose of the permissible remedies is solely to right the wrong done to the aggrieved person, not to punish the wrongdoer. This is reflected in the statute itself which limits the relief available to the aggrieved person to measures which will remedy the injurious effect of the discriminatory practice such as requiring that the practice cease (Executive Law § 297 [4] [c] [i]), or that an aggrieved employee be rehired or upgraded (§ 297 [4] [c] [ii]), or that "compensatory damages” be awarded (§ 297 [4] [c] [iii]).

That the Legislature has consistently been concerned with rectifying the wrong to the injured party caused by the discriminatory practice — not punishing the transgressor — is borne out by the relevant history of the Human Rights Law from the time of its original enactment in 1951 (L 1951, ch 800). For example, the report of the Governor’s committee

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recommending the adoption of the 1968 amendment authorizing aggrieved persons to bring court actions (Executive Law § 297 [9]) makes it plain that the measure was designed to give aggrieved persons "a right of action in a court of competent jurisdiction for damages caused by such discriminatory practice”[1] (emphasis added) as an alternative to a proceeding before the Division. Significantly, in 1982 the Legislature rejected the recommendation of the State Assembly Subcommittee on Human Rights that it adopt an amendment empowering the State Division “to award exemplary damages for willful and persistent conduct to prevailing complainants in human rights cases” (In the Pursuit of Justice, Report of NY State Assembly Subcommittee on Human Rights [Mar. 25, 1982], at 10).
"Recommendation: Aggrieved persons should have a private cause of action for damages or equitable relief as an alternative to a proceeding before the Division.
"The Committee recommends that any individual subjected to a discriminatory practice should have a right of action in a court of competent jurisdiction for damages caused by such discriminatory practice or other appropriate relief, including the relief set forth in the proposed Human Rights Law. Although we would expect most aggrieved persons to use the less formal administrative procedures of the Division or a local human rights agency, they should not be required to do so” (Governor’s Committee Report, op. cit., at 41).

Finally, in a development which confirms that the Legislature never contemplated punitive damages as an appropriate remedy, in 1991 it amended the Human Rights Law (L 1991, ch 368, § 6) to add a specific provision for the award of punitive damages not to exceed the amount of $10,000, in cases of housing discrimination only (Executive Law § 297 [4] [c] [iv]). The logical inference, of course, from the Legislature’s action in expressly permitting punitive damages in housing cases is that such damages were not then recoverable for discrimination in other areas including employment (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 240 [expressio unius est exclusio alterius]). Indeed, from the legislative history it appears that the inference is justified. The amendment was adopted at the instance of the State Division of Human Rights so as to bring the Human Rights Law into compliance with the applicable Federal Fair Housing Amendments Act

* The Report of the Governor’s Committee to Review New York Laws and Procedures in the Area of Human Rights (Mar. 27,1968) part V (A), entitled "Remedies Available to Complainants” states:

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(see, 42 USC § 3601 et seq.). In its memorandum recommending adoption of section 297 (4) (c) (iv), the State Division, in commenting on existing law, noted: "At present the Human Rights Law * * * [p]ermits only compensatory damages to aggrieved persons” (1991 McKinney’s Session Laws of NY, at 2030, 2031 [emphasis added]).

We thus conclude that permitting an aggrieved person to recover punitive damages in a court action would be incompatible with the nature of the remedial relief which the Legislature has consistently deemed appropriate for violations of the Human Rights Law. It would seem highly improbable that the Legislature in adopting Executive Law § 297 (9) could have intended to permit the recovery of punitive damages in a court proceeding when that relief is expressly excluded in a proceeding before the State Division. Such a construction of the statute would inevitably encourage aggrieved persons to avoid the administrative channel before the State Division and to bring their complaints instead in court proceedings where they might collect punitive damages. No reason has been suggested as to why the Legislature would have intended this consequence; on the contrary, the history surrounding the addition of section 297 (9) indicates that this was not its purpose and that it was expected that after its adoption "most aggrieved persons [would continue] to use the less formal administrative procedures of the Division or a local human rights agency” (Governor’s Committee Report, op. cit., at 41).

In sum, we agree with the Appellate Division that punitive damages are not permitted in a court action pursuant to Executive Law § 297 (9) (accord, Tyler v Bethlehem Steel Corp., 958 F2d 1176 , 1190-1191 [2d Cir 1992]; Conan v Equitable Capital Mgt. Corp., 774 F Supp 209 , 211 [SD NY 1991]).

The order of the Appellate Division should be affirmed, without costs.

Acting Chief Judge Simons and Judges Titone, Bellacosa and Smith concur; Judge Kaye taking no part.

Order affirmed, without costs.

Cases cited

Statutes and regulations cited