HSBC bank tellers in U.S. get new trial on bias claim

By Jessica Dye

(Reuters) - Four bank tellers at an HSBC bank branch in Brooklyn, New York will get a new trial on their claim that they were subject to a racially hostile work environment, thanks to a law passed in 2005 that lowered the threshold for establishing workplace hostility.

In 2009, a Brooklyn jury found that the four black women had not proven that the conduct at the HSBC branch in Brooklyn's Borough Park neighborhood was "severe and pervasive" enough to prove a cause of action against the bank.

The jury also found in HSBC's favor on a claim that the plaintiffs were subject to disparate treatment by the bank branch and its managers.

But under the Local Civil Rights Restoration Act, passed by the New York City Council in 2005 to amend the city's Human Rights Law, the "severe and pervasive" standard the jury was instructed to apply was too strict, according to a unanimous ruling issued on Tuesday by a four-judge panel of the New York Appellate Division, Second Department.

The 2005 law "recognizes that discrimination violations are, per se, serious injuries" and was intended to "correct a perceived failure by the courts" to apply less-restrictive interpretations of state and federal anti-discrimination statutes, the court wrote.

The jury in the 2009 trial applied the earlier standard because the tellers' claims were first filed in 2003, before the city law was enacted. But the appeals court found that the 2005 standard should have been applied retroactively, because the statute's "remedial purpose" and its immediate enactment "evinced a sense of urgency," the court wrote.

NEW TRIAL ORDERED

The appeals court relied heavily on a 2009 ruling from the Appellate Division, First Department, in Williams v. New York City Housing Authority, which rejected the "severe and pervasive" formulation.

While questions of severity and pervasiveness can be used to calculate damages, they should not be used to determine questions of liability, the First Department ruled.

"The jury could have reasonably found that the harassment complained of by the plaintiffs, while not severe and pervasive, constituted more than petty slights and trivial inconveniences," the Second Department panel wrote.

As a result, the appeals court reversed the jury verdict on the hostile environment claim and ordered a new trial for the four women on that count.

Alan Trachtman, an attorney for the plaintiffs, did not comment on the ruling. A spokesman for HSBC said the bank had no comment.

The case is Nelson et al. v. HSBC Bank USA et al., in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, 2009-04273.

(Reporting by Jessica Dye; Editing by Ted Kerr)