In an ongoing case in which Adam Leitman Bailey, P.C. is representing a real estate broker and agent who are pursuing claims against their former employer for civil rights law violations and unpaid commissions, the EEOC issued right-to-sue letters permitting the firm’s clients to bring claims under Title VII of the Civil Rights Act of 1964 (“Title VII”). The firm successfully moved to amend the clients’ complaint in the existing federal case to assert claims under Title VII on behalf of both clients, and under the New York State Human Rights Law on behalf of one of them.

After the New York State Division of Human Rights (“NYSDHR”) had investigated Jarret Willis’s claims of discrimination against Bespoke Real Estate LLC and two related entities (the “Bespoke Entities”), and the United States Equal Employment Opportunity Commission (“EEOC”) had conducted a partial investigation of Harlan Goldberg’s discrimination and retaliation claims against the same entities, both Mr. Willis and Mr. Goldberg obtained notices of right to sue from the EEOC, giving them the right to bring claims under Title VII against the Bespoke Entities.

Messrs. Willis and Goldberg already had an action in federal court against Bespoke Entities and two of those entities’ members, in which they had asserted, among other causes of action, claims under 42 U.S.C. § 1981 (“§ 1981”), a Reconstruction-era civil rights statute, so Adam Leitman Bailey, P.C. moved for leave to amend the complaint in that action to assert Title VII claims on behalf of both of them. In addition, the firm moved to assert claims on behalf of Mr. Willis under the New York State Human Rights Law, and new claims on behalf of Mr. Willis, under all three statutes, for retaliation based on events following Mr. Willis’s constructive discharge from Bespoke Entities.

The defendants opposed the motion to amend the complaint on several grounds, the most substantive of which was that, according to them, Mr. Willis could not assert a retaliation claim under § 1981 based upon conduct that occurred after Mr. Willis’s employment with Bespoke Entities had ended, since no such conduct could have altered the terms of Mr. Willis’s employment with Bespoke Entities.

Adam Leitman Bailey, P.C. argued, in its reply brief on the motion for leave to amend, that a 1997 United States Supreme Court decision had definitively held that a retaliation claim could be brought under Title VII for an employer’s conduct that occurred after the end of the plaintiff’s employment with the employer. In addition, the firm argued that a second United States Supreme Court decision, in 2006, had further elucidated that retaliation claims under Title VII could be based on a more expansive scope of misconduct than could discrimination claims under the same statute. Thus, while an employer’s conduct needs to affect the terms and conditions of an employee’s conduct to constitute discrimination prohibited by Title VII, conduct that does not meet that definition could still constitute prohibited retaliation if such conduct might well have dissuaded a reasonable employee from making or supporting a charge of discrimination. Although the defendants disputed the sufficiency of only the retaliation claim brought under § 1981, and not that under Title VII, the United States Court of Appeals for the

Second Circuit, in which New York is located, had held that the same standards for retaliation claims applied to each type of case.

The United States District Court presiding over the case agreed with Adam Leitman Bailey, P.C.’s arguments, and permitted the entire amendment of the complaint as requested by Mr. Willis and Mr. Goldberg. The defendants have since served an answer to the complaint, with counterclaims, and the pleadings in that case continue.

Brandon M. Zlotnick of Adam Leitman Bailey, P.C. worked on this motion.