I dissent and write separately because I believe we need not reexamine the definition of "marital status" to resolve this case. The Code's housing provisions have very different text from the Code's provisions concerning other forms of discrimination. The housing provisions prohibit discrimination against not only an individual, but also "a group of persons," like a couple ^[FN6]. Even adopting the narrowest view of "marital status," housing discrimination against a couple for being married, unmarried, separated or divorced is prohibited.

The proprietary lease at issue in this case requires tenants to obtain the approval of the co-operative's Board of Directors for any transfer except "an assignment, transfer or bequest to the Lessee's [*8]spouse." Because Mr. Burrows and Ms. McCabe never married or obtained a registered civil partnership, the Board refused to extend this provision to them. I would hold that Ms. McCabe and Mr. Burrows were discriminated against as a couple on the basis of their marital status as unmarried ^[FN7]. That is plain from the words of the statute. But even if it were necessary to examine the legislative history, it fully supports the proposition that the City Council intended to prohibit the differential treatment of married and unmarried couples.

Section 8-107 (5) (a) (1) of the NYCHRL makes it unlawful to discriminate in the provision of housing accommodations "[b]ecause of the actual or perceived . . . marital status . . . of any person or group of persons." Sections 8-107 (5) (a) (1) (a), (b) and (c) delineate the conduct that is prohibited under the Code. Each section refers explicitly to conduct against a person or persons, in the plural ("[a] To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any such person or group of persons such a housing accommodation or an interest therein; [b] To discriminate against any such person or persons in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith; or [c] To represent to such person or persons that any housing accommodation or an interest therein is not available for inspection, sale, rental or lease when in fact it is available to such person"). The Code's employment and public accommodations provisions, in contrast, apply only to a "person," in the singular.^[FN8]

We have long recognized that legislators do not "deliberately place a phrase in the statute which was intended to serve no purpose" and that "each word must be read and given a distinct and consistent meaning" (Matter of Rodriguez v Perales, 86 NY2d 361, 366 [1995], quoting Matter of Smathers, 309 NY 487, 495 [1956]). The text of section 8-107 (5) (a) (1) prohibits discrimination in housing against (1) a person, or (2) a group of persons. A couple of persons in a relationship are "persons" or "a group of persons." The plain language of the housing provisions prohibits discrimination against a couple.

Specifically, the Code prohibits discrimination against a couple on the basis of marital status. The majority defines marital status as "the legal condition of being single, married, legally separated, divorced, or widowed" (majority op at 8). Because resolving this case does not require us to define the scope of marital status, I neither adopt nor reject the majority's definition. I simply apply it to the people protected by the NYCHRL's housing provisions under the plain language of the statute. Under the majority's definition, a landlord (or cooperative corporation) could not reject a tenant (or buyer) on the ground that the tenant was married, or single, or divorced. I agree: doing so would constitute discrimination against that person on the basis of marital status. That definition can easily be applied to the "group of persons" called a couple as well as to individuals—it is commonplace to describe a couple as unmarried, married, separated or divorced.

The majority's interpretation of the NYCHRL gives no meaning to City Council's reference to a "group of persons" and repeated use of the plural "persons" in section 8-107 (5) (a) (1). Nor does it ascribe any meaning to the Council's choice to use the plural "persons" in the housing context and the singular "person" in the employment and public accommodations contexts.

The incompatibility of the majority's test with the text of the Code becomes apparent when we ask how the majority could ever find that a landlord discriminated against "persons" based on marital status ^[FN9]. Imagine a landlord who will happily rent to married couples or single individuals but refuses [*9]to rent to an unmarried couple because she does not believe in cohabitation outside marriage. The majority would presumably hold that the landlord is not discriminating based on marital status; she is simply discriminating on the basis of who the two individuals are (not) married to. Imagine that the same landlord refuses to rent to two single people who wish to live together, because she fears a relationship may develop between them. If the landlord would have rented to the pair were they married, is she only discriminating against them based on their relationship to each other? The majority thus renders the phrase "group of persons" meaningless in section 8-107 (5) (a) (1).

The majority relies on the inclusion of "partnership status" in the NYCHRL for the proposition that "the City Council did not understand the bar on 'marital status' discrimination to cover unmarried couples" because "[i]f it did . . . there would have been no need for the amendment" (majority op at 9). If that is true, we are faced with two options: (1) a construction of the statute that renders protections based on partnership status superfluous, or (2) a construction of the statute that renders the phrase "group of persons" meaningless. Thankfully, we have guidance from the City Council itself on how to resolve such an impasse. We must construe the Code "broadly in favor of discrimination plaintiffs, to the extent such a construction is reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). By rendering "group of persons" meaningless, the majority narrows the Code's scope. Giving the phrase meaning broadens the Code in favor of discrimination plaintiffs like Ms. McCabe.

But the City Council's broad construction mandate need not come into play, because applying marital status protections to couples does not render partnership status superfluous. Supreme Court's decision in Levin cited an Appellate Division decision holding that a domestic partnership is not a "marital status" under state law (Levin v Yeshiva University, 180 Misc 829, 834-835 [Sup Ct 1999], citing Funderburke v Uniondale Union Free School Dist. No. 15, 251 AD2d 622, 623 [2d Dept 1998] ["We do not find that a domestic partnership is a 'marital status' within the meaning of Executive Law § 296"]). Funderburke suggested that discrimination based on partnership status alone (including discrimination against an individual for their status of being in a domestic partnership) would not be prohibited marital status discrimination ^[FN10]. And the majority's definition [*10]of what constitutes marital status—based on the plain meaning of that term—does not, of course, include the status of being in a domestic partnership.

To illustrate the separate value of protection based on partnership status, imagine three couples: Micah and Morgan are married, Devon and Dana are in a domestic partnership, and Lindsey and Leslie are unmarried life partners. A prohibition on marital status discrimination against couples would prevent a landlord from refusing to rent to Micah and Morgan because they are married, or to Lindsey and Leslie or Devon and Dana because they are not. But it might not prevent a landlord from discriminating against Devon and Dana for being in a domestic partnership. A landlord might, for example, rent to married or unmarried couples but refuse as a matter of policy to rent to couples in a domestic partnership in an attempt to evade the Code's protections against sexual orientation discrimination. Another landlord might refuse to rent to Lindsey and Leslie because despite having the option to become domestic partners, they have chosen not to. And Devon and Dana might experience partnership status discrimination as individuals. An employer who opposed the creation of domestic partnerships might, for example, fire Devon for entering into one. If being in a domestic partnership is not a marital status, that conduct would not be prohibited without the addition of "partnership status" to the Code.

Granting groups—not just individuals—protection against housing discrimination reflects the world we live in. Couples look for homes together, co-sign leases and mortgages together, move in together, and live together. Unmarried couples are choosing to do so more than ever. Cohabitation among unmarried couples has more than doubled since the mid-1990s. Today, approximately 7% of adults (or 17 million people) live with a partner to whom they are not married (United States Census Bureau, Unmarried Partners More Diverse Than 20 Years Ago [Sept. 23, 2019], https://www.census.gov/library/stories/2019/09/unmarried-partners-more-diverse-than-20-years-ago.html).

The rise in unmarried cohabitation reflects broader changes in our attitudes towards marriage. In 1960, 72% of U.S. adults were married. By 2016, that number had fallen to 50%. The marriage rate is lower for Americans with no college education: in 2015, 65% of Americans over 25 with bachelor's degrees were married and 50% of Americans over 25 with a high school education or less were married. And the marriage rate is lower for Black and Latinx Americans: 30% of Black adults, 46% of Latinx adults, and 54% of white adults are married (Pew Research Center, As U.S. Marriage Rate Hovers at 50%, Education Gap in Marital Status Widens [Sept. 14, 2017], https://www.pewresearch.org/short-reads/2017/09/14/as-u-s-marriage-rate-hovers-at-50-education-gap-in-marital-status-widens/). Discrimination against unmarried couples affects not only couples, but their children too: approximately 5 million children are being raised by unmarried cohabiting [*11]parents (id.).

Not everyone views these changes as positive: 30% of U.S. adults believe either that it is never acceptable to cohabitate outside marriage, or that it is acceptable only if the couple plans to marry (Pew Research Center, Key Findings on Marriage and Cohabitation in the U.S. [Nov. 6, 2019], https://www.pewresearch.org/short-reads/2019/11/06/key-findings-on-marriage-and-cohabitation-in-the-u-s/). Where these views collide with the lives of New Yorkers, City Council has chosen to say that persons—plural—should be able to access housing without regard for their marital status.

By ignoring the Council's words, the majority does great damage to marital status protections in the housing context, creating a rule that functionally protects only those who seek housing alone. Under the majority's rule, a landlord could not refuse to rent to a single person for being unmarried or a divorced person for being divorced (or a married person seeking housing alone for being married). But a landlord who does not believe in cohabitation outside marriage could refuse to rent to an unmarried couple because they are not married to each other. And a landlord who does not believe in marriage could refuse to rent to a married couple because they are. Here, the majority holds that a co-operative can withhold benefits from unmarried couples because they are unmarried, while giving those same benefits to married couples. The plain language of the NYCHRL is incompatible with that outcome.

RIVERA, J. (dissenting):

Petitioner Maryann McCabe and her intimate life partner David Burrows lived together in his cooperative apartment as spouses, where she cared for him until the day he died. Unsurprisingly, Burrows left petitioner the apartment in his will and named her the executor of his estate. In addition, Burrows' lease provides, in part, that, upon his death, the cooperative will automatically assign the lease and shares to his surviving spouse. Based on both this lease and testamentary disposition, petitioner requested the transfer of the apartment and shares to her name. Respondent refused on the grounds that petitioner and Burrows were neither married nor registered domestic partners. Petitioner sued, relying, in part, on the New York City and New York State Human Rights Laws (NYCHRL and NYSHRL, respectively), which prohibit discrimination in housing based on marital status.

Petitioner should prevail on her claim because she was denied a benefit that respondent concedes she would have received if she was married. Instead, the majority invokes the Court's prior narrow construction of "marital status" to justify respondent's blocking of the transfer as a denial based on her not being married to Burrows rather than her being unmarried generally (see Levin v Yeshiva Univ., 96 NY2d 484, 490 [2001]). Even assuming that construction made sense when it was first adopted, it is no longer a viable reading because the City and State Human Rights Laws have since been amended to require us to construe them "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]), to maximally achieve their remedial antidiscrimination purposes (see Syeed v Bloomberg L.P., 41 NY3d 446, 451 [2024]; Executive Law § 300; Administrative Code of City of New York § 8-130 [a]).

Given these clear legislative directives, it is incumbent upon us to construe "marital status" to protect an individual against discrimination based on their lack of membership in a class of married or unmarried or an intimate life partnership regardless of the partnership's marital status. Indeed, a person's "marital status" is wholly dependent on the existence or nonexistence of an intimate relationship with another person—because one cannot be married to oneself, "marital status" is always a relational identity. The majority's reading defies the law's plain text and inescapable directive, thereby leaving persons like petitioner vulnerable to intolerable discrimination. I therefore dissent.

Petitioner alleges that Burrows was her intimate life partner for years and that, when Burrows died, they lived as spouses in a cooperative apartment that Burrows owned and which was in his name. [*12]Like many life partners—married and unmarried—petitioner cared for Burrows in their home when he fell ill. Then, before Burrows passed away, their counsel wrote to the cooperative, stating that Burrows wanted "to add his longtime partner Maryann McCabe to the stock certificate and proprietary lease, as joint tenants with rights of survivorship." Counsel noted their long-term relationship—that the two had lived in the apartment "for the past 12 years" and "been partners for over 25 years." The request was still pending with respondent when Burrows died the following year.

In accordance with their wishes, petitioner requested transfer of the apartment to her name. Despite their public long-term relationship, years of living together as intimate partners in the apartment, Burrows' inter vivos request, and Burrows' testamentary transfer of the apartment to petitioner, respondent denied the transfer and demanded that petitioner leave. Petitioner renewed her transfer request, providing respondent with a copy of Burrows' will and invoking paragraph 16 (b) of Burrows' lease. That paragraph provides that, upon a lessee's death, "consent shall not be unreasonably withheld or delayed to an assignment of the lease and shares to a financially responsible member of the Lessee's family (other than the Lessee's spouse as to whom no consent is required)" (emphasis added). Respondent concedes that, by its plain terms, this provision requires automatic transfer to the decedent lessee's surviving spouse.

Respondent again refused transfer on the grounds that petitioner was not Burrows' spouse, but informed petitioner that she could—like any other prospective resident—apply to purchase the apartment, and petitioner did so under protest. Respondent then served petitioner with a notice to cure and notice of termination, without ruling on her purchase application. Afterwards, respondent rejected petitioner's purchase application on the ground that she failed to meet the financial requirements.

Petitioner, individually and as the Executor of Burrows' estate, filed an Article 78 petition seeking transfer of the shares and proprietary lease to her name. As exhibits, petitioner provided financial documents and public notices acknowledging her romantic long-term relationship with Burrows, including past family obituaries describing them as life partners. She alleges, as relevant here, that respondent violated the NYCHRL and NYSHRL—which prohibit discrimination based on marital status—because petitioner was Burrows' long time romantic partner and spousal equivalent. Supreme Court denied the petition and dismissed the proceeding and the Appellate Division affirmed (214 AD3d 564 [1st Dept 2023]). Both courts relied on this Court's prior decisions construing "marital status" discrimination as based on a complainant's status as married or unmarried versus a complainant's relationship to another person (see Levin, 96 NY2d at 490; Hudson View Props. v Weiss, 59 NY2d 733, 735 [1983]). We granted petitioner leave to appeal (40 NY3d 904 [2023]).^[FN1]

Respondent concedes that it denied petitioner's request for an automatic transfer of the shares and lease under paragraph 16 (b) only because petitioner was not legally recognized as Burrows' spouse or domestic partner when Burrows died. That concession is fatal to respondent's defense under the [*13]Human Rights Laws because it admits plain discrimination against petitioner because she was not married to Burrows. But for this fact, respondent would have transferred the interest. Therefore, I would reverse the Appellate Division and grant the petition inasmuch as it seeks relief under the Human Rights Laws.

The NYCHRL provides, in relevant part: "It shall be an unlawful discriminatory practice . . . [t]o refuse to sell, rent, lease, approve the sale, rental, or lease or otherwise deny to or withhold from any such person or group of persons such a housing accommodation or an interest therein; . . . [b]ecause of the actual or perceived . . . marital status . . . of any person or group of persons" (Administrative Code § 8-107 [5]). As part of the 2005 Restoration Act, which broadly reformed the NYCHRL, the City Council expanded the NYCHRL's construction provision to require that the law be "construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof" "regardless of whether federal or New York state civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed" (Administrative Code § 8-130; Local Law No. 85 [2005] of City of NY § 7). Accordingly, construction of similarly-worded federal and state counterparts must be viewed "as a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise" (id. § 1). The amendment was a response to what the Council viewed as judicial misapplication of the NYCHRL. As the City Council explained in the NYCHRL's text, at the time of the reform's passage, the courts had "construed [the NYCHRL] too narrowly to ensure protection of the civil rights of all persons covered by the law" (id. § 1). Hence the need to "restore" the NYCHRL.

Amidst this general concern about overly-narrow constructions defeating the NYCHRL's purpose, the Council had a specific concern that this Court's view of the "marital status" category gutted the law's capacity to protect against certain forms of discrimination—including discrimination against same sex partners who, at the time, could not marry in New York State.^[FN2] However, intimate life partners, regardless of sexual orientation, could register as domestic partners and thus have their relationship recognized under City and State laws (see Administrative Code § 3-240; Executive Law § 354-b; Public Health Law § 2805-q [1]; Public Health Law § 4201 [1] [c] and [2] [a] [ii-a]). Therefore, in response to this concern, the Act added "partnership status" as one of the protected categories until the courts had an opportunity to properly apply the new liberal construction mandate. As explained in the Report by the Committee on General Welfare, "[p]ending judicial reconsideration of the proper scope of protection from discrimination based on marital status, this [partnership status] provision will ensure that 'domestic partners are protected 'from all forms of discrimination addressed by the human rights law' " (Report of the Comm on Gen Welfare, 2005 NY City Legis Ann at 536). The amendment thus served as a stopgap measure which placed married [*14]persons and persons in a legally recognized domestic partnership, as defined by the Act,^[FN3] on equal footing for purposes of the NYCHRL. However, the Council expected that this Court would reconsider its view of "marital status," construe this term liberally to achieve the NYCHRL's remedial purposes, and apply that same liberal construction to "partnership status" in the future.

In 2016, the Council again amended the NYCHRL to further strengthen its protections, declaring that, "[e]xceptions to and exemptions from the provisions of [the NYCHRL] shall be construed narrowly in order to maximize deterrence of discriminatory conduct" (Local Law No. 35 [2016]). The Council also indicated its dissatisfaction with the courts' continued narrow approach to the NYCHRL (id., Rep of Comm on Civil Rights, Governmental Affairs Division at 8, Local Law Bill Jacket, Local Law No. 35 [2016]). The Council identified this Court's decision in Albunio (16 NY3d 472) and the First Department's Williams v New York City Housing Auth. (61 AD3d 62 [1st Dept 2009]) case as examples of decisions that "correctly understood and analyzed the liberal construction requirement" and "developed legal doctrines accordingly that reflect the broad and remedial purposes of" the NYCHRL (Administrative Code § 8-130). Both decisions reasoned that the Restoration Act required a broad construction of the NYCHRL to effectuate the Council's goal "to eliminate and prevent discrimination from playing any role in actions relating to employment, public accommodations and housing and other real estate" (Administrative Code § 8-101).

Like the NYCHRL, the NYSHRL prohibits discrimination based on marital status, declaring it unlawful to, "refuse to sell, rent or lease or otherwise to deny to or withhold from any person or group of persons such housing accommodations because of the . . . marital status . . . of such person or persons" (Executive Law § 296 [5]). The NYSHRL has a remedial purpose similar to that of the NYCHRL—to "eliminate and prevent discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions" (id. § 290 [3]).

In 2019, the state legislature amended the NYSHRL to expand its protections and adopted an enhanced liberal construction requirement almost identical to the language in the NYCHRL (S. 6577, 242d Leg. § 16 [NY 2019]; Executive Law § 300). The NYSHRL now provides, with added [*15]language in bold:

"The provisions of this article shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed. Exceptions to and exemptions from the provisions of this article shall be construed narrowly in order to maximize deterrence of discriminatory conduct" (Executive Law § 300 [emphasis added]).

The State's choice of almost verbatim language found in the NYCHRL—which our courts had applied broadly for over a decade prior to the 2019 state amendment—confirms the State legislature's intent and understanding that these comparable provisions should also be broadly construed to achieve the same remedial antidiscrimination purposes. Before the 2019 amendments, the NYSHRL had generally been construed more narrowly than the NYCHRL because of the express mandate that the NYCHRL, be construed to apply more broadly than similarly-worded provisions of state and federal laws. Following the 2019 amendment, courts have applied the same analytical framework to NYSHRL and NYCHRL discrimination claims, in recognition that, given the now applicable parallel language, the statutes must be interpreted in kind (see Cobb v Ellab Inc., 2024 WL 1963430, at *5 [ND NY May 2, 2024, No. 122CV1002MADCFH]; Cannizzaro v City of New York, 82 Misc 3d 563, 577, 2023 NY Slip Op 23393 [NY Sup Ct 2023]; Charles v City of New York, 2023 WL 2752123, at *6 [SD NY Mar. 31, 2023, No. 21 CIV. 5567 (JPC)]). We too have come to the same recognition that construction of the NYSHRL and NYCHRL follow the same interpretative path (Syeed, 41 NY3d at 451-453). Therefore, there is but one liberal construction of "marital status" that applies to petitioner's claims under each of the Human Rights Laws.

Under this rule of construction, "[c]ourts must construe the Human Rights Laws 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible' " (Syeed at 451, quoting Albunio, 16 NY3d 472, 477-478, citing Makinen v City of New York, 30 NY3d 81, 88 [2017]). Applying this rule, "marital status" under the Human Rights Laws covers both (1) a person's membership in a class of married or unmarried persons, and (2) a person's marital status in relation to another person. This construction is both logical and eminently reasonable because it guarantees equal treatment among individuals different from one another based solely on the proscribed classification. The proscription common to both Human Rights Laws eliminates marriage as a basis for differential treatment between persons who are similarly situated. It further recognizes the obvious: that married status is based on the existence or nonexistence of an intimate life partner relationship with someone else. Thus, we must construe "marital status" liberally to protect a complainant based both on a general unspecified association to a protected group (e.g. petitioner is unmarried) as well as on the specific individual relationship that defines the complainant as a member of the protected group (e.g. petitioner is unmarried to Burrows).

The Appellate Division correctly adopted this construction in Morse v Fidessa Corp. when it [*16]observed that "[e]ncompassing the marital status of two people vis-a-vis one another within the meaning of the term 'marital status' is, at minimum, a reasonable construction" (165 AD3d 61, 68 [1st Dept 2018]). There, the court concluded that " '[m]arital status' may refer to whether an individual is married or not married. It may also refer to whether two individuals are married to each other or not married to each other" (id. at 68). As Morse further noted, "a narrow interpretation of 'marital status' would allow a wide range of discriminatory conduct—including conduct arising out of assumptions based on stereotypes—to continue unabated" (id. at 68-69). Construing "marital status" to include discrimination based on an intimate life partner relationship to another person is "the best way to achieve broad coverage of the city law in accordance with the stated goal of the Council to 'meld the broadest vision of social justice with the strongest law enforcement deterrent' " (id. at 72, citing Comm Rep at 11 [internal quotation marks omitted]; Williams, 61 AD3d at 68).

As applied here, the analysis is straightforward. Respondent concedes that it denied petitioner's request for an automatic transfer of Burrows' lease and shares, as required by paragraph 16 (b) of the lease, solely because at the time of Burrows' death, he and petitioner were not married or registered domestic partners. Thus, respondent extends a benefit to all cohabitating partners except those who are unmarried and unregistered, regardless of their actual loving and committed lifelong intimate relationship. That denial is prototypical discrimination—denial of a benefit based on lack of membership in a preferred group, here the married or domestic partner survivor of the tenant.

The majority adopts respondent's view that we must adhere to the construction of "marital status" under the Human Rights Laws the Court first adopted under the old statutory frameworks in the 1980s. In doing so, the Court ignores that our task now, over four decades later, is to construe the current versions of the Human Rights Laws that facially reject both the definition of "marital status" and, as a consequence, the antiquated analytical approach the majority retains today.

The Court first narrowly construed "marital status" under the NYSHRL in a challenge to an employer's anti-nepotism rule which "forb[a]d[e] an employee from working under the supervision of a [ ] spouse" (Manhattan Pizza Hut, Inc. v New York State Human Rights Appeal Bd., 51 NY2d 506, 509 [1980]). The employee in Manhattan Pizza Hut was fired because she was married to her supervisor. To discern the meaning of "marital status" the Court relied on "the obvious and fundamental rule of construction that words of common usage are to be given their ordinary meaning"—a general rule applied by courts to ascertain legislative intent (id. at 511, citing McKinney's Cons Laws of NY, Book 1, Statutes § 94).

"So tested, the plain and ordinary meaning of 'marital status' is the social condition enjoyed by an individual by reason of his or her having participated or failed to participate in a marriage. Illuminated another way, when one is queried about one's 'marital status', the usual and complete answer would be expected to be a choice among 'married', 'single', etc., but would not be expected to include an identification of one's present or former spouse and certainly not the spouse's occupation" (id. at 511-512).

Thus, the genesis of the Manhattan Pizza Hut Court's view of marital status is a general rule now displaced by the respective amendments to the Human Rights Laws which substitute a rule of construction that the laws be "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio, 16 NY3d at 477-478).^[FN4]

The Manhattan Pizza Hut construction has been the source of disagreement since its adoption. Chief Judge Cooke in dissent observed that marital status under the NYSHRL encompassed the employer's termination of the employee because the sole ground for termination was that she was married to another employee, and the majority's reasoning ignored this plain construction of the statute (Manhattan Pizza Hut, 51 NY2d at 515 [Cooke, Ch. J., dissenting]).

Manhattan Pizza Hut must be understood in context as reflecting the Court's primary concern that a broader construction of marital status would invalidate anti-nepotism rules (51 NY2d at 511-513). There, the Court explained that anti-nepotism rules serve a valuable purpose to "avoid favoritism, whether conscious or unconscious" when "two close relatives work together" (51 NY2d at 513). True enough, but as Chief Judge Cooke explained, the employer's business considerations could easily be accommodated in a non-discriminatory manner because "[a]n employer should be free to prevent personal relationships between supervisors and other employees from disrupting the work environment through rules focused on such a problem, not by unwarranted interference with a protected status" (51 NY2d at 516 [Cooke, Ch. J., dissenting]). Thus, the NYSHRL marital status prescription and anti-nepotism rules need not be in tension.

The Court next applied the construction adopted in Manhattan Pizza Hut in Hudson View, a case involving a restrictive covenant that limited occupancy under the lease to a tenant and their immediate family (see 59 NY2d 733 [1983]). The Hudson View Court concluded enforcement of this covenant was not marital status discrimination, reasoning that "the issue arises not because the tenant is unmarried but because the lease restricts occupancy of her apartment, as are all apartments in the building, to the tenant and the tenant's immediate family" (id. at 735). Like in Manhattan Pizza Hut, the Hudson View Court relied on a now-legislatively-discarded general rule of construction (Syeed, 41 NY3d at 451; Albunio, 16 NY3d at 477-478). And again, the Court provided no reason in its short memorandum opinion for why it concluded that the complainant's actual relationship—she was unmarried, rather than married, to the proposed occupant—was irrelevant to its analysis other than because it said so.

Then in 2001, the Court in Levin rejected claims brought by a student and her same-sex partner that a university violated both Human Rights Laws by denying them university-owned housing on the basis that they were not married, reasoning that the policy limitation was not based on marital status (see generally 96 NY2d at 484).^[FN5] The Court explained that, under its precedent, [*17]"for purposes of applying the statutory proscription, a distinction must be made between the complainant's marital status as such, and the existence of the complainant's disqualifying relationship—or absence thereof—with another person" (id. at 490). The Court concluded that the university's policy was "restricted to those in legally recognized, family relationships with a student, not the student's marital status," and was therefore indistinguishable from the policy in Hudson View, which limited occupancy to the tenant's immediate family (id. at 490-491). As such, the university policy—like the Hudson View policy—did not discriminate on its face based on marital status in violation of the Human Rights Laws.^[FN6]

Dissenting from the portion of Levin adhering to the Manhattan Pizza Hut construction, Chief Judge Kaye concluded that the plaintiffs properly pleaded claims based on marital status discrimination, because the plaintiffs were "denied partner housing merely because they were unmarried" (96 NY2d at 502 [Kaye, Ch. J., dissenting in part]). As she explained, the Human Rights Laws "bar[ ] decisions from being made on the basis of whether a person is 'single, married, divorced, separated or the like' " which, she concluded, "is exactly what happened" to the plaintiffs (id., citing Manhattan Pizza Hut, 51 NY2d at 512). Chief Judge Kaye also distinguished Manhattan Pizza Hut because that case turned on the sound reasons for anti-nepotism rules, which were not at issue in Levin (id. at 502). Hudson View also was measurably different because the tenant there never asserted that her romantic partner was her immediate family member (id. at 501). In contrast, "the gravamen of [the Levin] plaintiffs' complaint is that they share the same level of commitment with their partners as married persons share with their spouses—that their life partners are members of their immediate families" (id.).

As both Chief Judges Cooke in Manhattan Pizza Hut and Chief Judge Kaye in Levin observed, the narrow construction of the "marital status" discrimination proscription is contrary to the commonsense understanding that one can only be married or unmarried by reference to another person. That understanding tolerates a class-wide distinction plainly at odds with the Human Rights Laws' antidiscrimination goals.

In an attempt to justify settling on the same narrow, now inapt construction of marital status that this Court adopted over four decades ago, the majority advances a variety of arguments. Some are directly at odds with the Supreme Court's statutory construction approach to Title VII—which is the floor below which the protections of our human rights laws cannot fall—in Bostock v Clayton County, Georgia (590 US 644 [2020]). All of the arguments are unpersuasive.

To the extent the majority suggests that the construction mandates of the Human Rights Laws do not apply to the provisions that list the protected classifications (Administrative Code § 8-107 [5]; Executive Law § 296 [5])—that somehow the construction provision applies piecemeal—that approach finds no textual support in the respective statutes (majority op. at 14). Neither the NYCHRL nor the NYSHRL expressly limit their broad construction mandate to apply to everything but the classifications. Certainly, no such implication can be drawn from a mandate that we construe the laws liberally to effectuate their antidiscrimination remedial purposes, since a narrow interpretation would permit rather than discourage or eliminate discriminatory actions.^[FN7]

Nevertheless, the majority contends that because the City Council has defined protected categories with precision, and acted to expand protections when it deemed it appropriate the failure to expressly add "unmarried couples" signals that the Council has excluded them from the NYCHRL protections (majority op at 11). That reasoning ignores the Council's command that we construe every term in the NYCHRL broadly to effectuate the statute's remedial purposes and the Council's overall goals. Any doubts on this point are laid to rest by the Committee on Civil Rights 2016 report which explains that the purpose of referring to cases in the 2016 law was to "reaffirm that courts must apply the liberal construction provisions in every case and with respect to every issue" (Comm Rep of the Governmental Affairs Division and Comm on Civil Rights, at 8-9 [Mar. 8, 2016]).

The majority reasons that "other provisions of the NYCHRL reinforce[] [its] understanding" that " 'marital status' " refers to whether a person is participating in a marriage, not the nature of one's relationship with another specific person" (majority op at 9). In addition to defying logic, by treating "married" as a solitary identity, the majority's attempt to justify its adherence to a narrow construction in contravention of the textual mandate fails on its own terms.

First, the majority claims that a broad construction would render superfluous the "partnership status" classification (see majority op at 9-10). That misunderstands the amendment's purpose, which was to equate the registered domestic partnerships with marriage; both classifications legally recognize an intimate relationship. The express addition of "partnership status," however, has no bearing on the scope of the discrimination proscription. Partners receive no greater or less protection than persons who are married. Under the 1980s construction retained by the majority, an intimate life [*18]partner who is neither married nor a registered partner can be denied housing accommodations based on their relationship to their chosen life partner. Petitioner's case illustrates this point; respondent denied petitioner the automatic transfer of the apartment lease and shares because she was not Burrows' surviving spouse or domestic partner. Indeed, as the majority acknowledges (see majority op at 10), even under that construction, "partnership status" is superfluous because a person who is a partner, as defined by the NYCHRL, is legally not a married person and thus would be protected to the extent the narrow construction protects any person because they are not married. The majority points to this corollary as evidence that the Council understood that domestic partners are not covered by the "marital status" classification. Perhaps the Council did have this understanding in mind, but not for the reason the majority presumes. The Council simply intended domestic partners to be no better or no worse off than married persons. That does not tell us that we must read the status of both classifications narrowly. The NYCHRL structure signals the contrary. As to how we actually construe the classifications we have a clear (not an imagined) mandate: read the entirety of the NYCHRL broadly in favor of discrimination plaintiffs, because "[c]ourts must construe the Human Rights Laws 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible' " (Syeed, 41 NY3d at 451, quoting Albunio, 16 NY3d 472, 477-478). I cannot see how the majority's construction favors plaintiffs when the construction allows discrimination against an intimate partner even though their relationship has all the indicia of a marriage or domestic partnership and lacks only the legal label. The majority's explanation of how the addition of "partnership status" somehow prohibits a broad reading of marital status also provides no satisfactory explanation for why the Report by the Committee on General Welfare, explicitly noted that the addition was a stopgap "[p]ending judicial reconsideration of the proper scope of protection from discrimination based on marital status" (Report of the Comm on Gen Welfare, 2005 NY City Legis Ann at 536; see majority op at 15 n 2). It strains credulity to read this statement of legislative intent to mean that the Council meant for us to "revisit" our definition of marital status and retain our previous interpretation, rather than engaging in a liberal construction analysis which, as I explain, leads to a different result.

The majority offers another "structural" argument: that the 2016 amendment's addition of "caregiver status" indicates that the Council does not intend for us to broadly construe those classifications it does include (see majority op at 11). That argument is flawed for similar reasons. The caregiver status classification applies to the NYCHRL employment discrimination proscriptions and protects workers against adverse employment actions based on the prospective or existing employee's caregiving responsibilities. It does not limit our construction of marital status at all. And, of course, this Court has already made clear that: (1) a complainant may have multiple bases for challenging an alleged discriminatory act; and (2) a failure on one does not automatically foreclose success on another (see Levin, 96 NY2d at 490).

The United States Supreme Court squarely rejected similar reasoning in Bostock (590 US at 644). Bostock involved Title VII of the Civil Rights Act—a law that notably does not have the same stringent construction mandates as the statutes at issue here—specifically, whether its prohibition of discrimination " 'because of . . . sex' " (42 USC § 2000e-2 [a] [1]) extended to discrimination based on "sexual orientation" (Bostock, 590 US at 656). The Court held that it does over the dissenters' protests that the text did not include "sexual orientation" and that the legislature has rejected attempts to amend Title VII to include that classification (compare id., with id. at 683 [*19][Alito, J., dissenting], and id. at 780-783 [Kavanaugh, J., dissenting]).

The Bostock majority's analysis is instructive and forecloses much of the current majority's contrived "structural" analysis. As to the majority's claim that "marital status" was traditionally not understood to include marital relationships (see majority op 8-9), Bostock cautions:

"Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit" (id. at 653).

The current majority's reliance on the Council's choice not to explicitly amend the definition of marital status as a basis for ignoring the Council's broad-construction command (see majority op at 16-18) endorses the very same flawed reasoning that Bostock rightly rejected:

"There's no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn't amend this one. Maybe some in the later legislatures understood the impact Title VII's broad language already promised for cases like ours and didn't think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn't consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a 'particularly dangerous' basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt"

(id. at 670, quoting Pension Benefit Guaranty Corp. v LTV Corp., 496 US 633, 650 [1990]; see also Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 433 [1969] ["The practicalities of the legislative process furnish many reasons for the lack of success of a measure other than legislative dislike for the principle involved in the legislation. Legislative inaction is a weak reed upon which to lean in determining legislative intent]). Nor can Bostock's rationale be distinguished on the grounds that legislative inaction post-dated the rulings from this Court that adopted a narrow interpretation of marital status. Before Bostock, Circuit precedent stretching as far back as the 1970s interpreted "sex discrimination" in Title VII to exclude sexual orientation discrimination—and this narrow interpretation was, in part, what variations of the Equality Act sought to rectify from that decade onwards (see e.g. Blum v Gulf Oil Corp., 597 F2d 936, 938 [5th Cir 1979]; Evans v Georgia Regional Hosp., 850 F3d 1248, 1255 [11th Cir 2017]; HR 14752, 93rd Cong, 2d Sess., §§ 6, 11 [1974]; HR 2015, 110th Cong, 1st Sess., §§ 3, 4 [2007]).

[*20]Bostock also rejected the majority's bases for its adherence to the Court's narrow reading—that it is "best left to the City Council" to "weigh[] the consequences" of such a broad interpretation, and "had the Council intended to require that marital status be extended to cover discrimination based on one's relationship to another, we assume it would have amended the statute to say exactly that" (majority op at 17-19):

"[There is no] such thing as a 'canon of donut holes,' in which Congress's failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. 'Sexual harassment' is conceptually distinct from sex discrimination, but it can fall within Title VII's sweep. Same with 'motherhood discrimination.' Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them" (id. at 669-670).

The majority in this case further cites Manhattan Pizza Hut for the proposition that the definition of "marital status" should stem from thinking of how one would answer when queried about one's marital status, and how this "turns on whether an individual has participated or failed to participate in a marriage" which is "distinct from the identity or situation of the individual's spouse" (majority op at 8, citing 51 NY2d at 511). This approach, according to Bostock, "rests on a mistaken understanding of what kind of cause the law is looking for" (590 US at 666). The better test is to apply the but-for test required by the "because" language of civil rights law, which, "directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause" (id.).

Here, of course, and contrary to the majority's exhortations to the contrary (see majority op at 16 n 5), if "one thing" about petitioner is changed—from being unmarried to married—the outcome changes, making the Supreme Court's but-for test glaringly applicable. Petitioner would not be evicted from her apartment in which she built a life with her now-deceased partner, but would get to stay in their home—and grieve—in peace. Of course, the Court's previous construction of "marital status" predates Bostock. But we now have both the benefit of the Supreme Court's analysis and the NYCHRL and NYSHRL's mandate that we may not construe those statutes in a manner that provides less protection than federal law. The majority's adherence to the old construction ignores decades of legal developments discrediting it.

As a final desperate attempt to justify its restrictive construction, the majority leans on the City Council to undo the mistake the majority makes today. If the Court has gotten things wrong, the majority assures, the Council can always correct it (see majority op at 18-19).^[FN8] That states the [*21]obvious—the legislature always has authority to clarify its enactments when the courts misapply them—but it offers no help for the majority here, where the Council heavily criticized the very same construction the Court retains today when the Council enacted the Restoration Act in the wake of Levin.

"Indeed, Levin was cited in connection with the passage of the Restoration Act as illustrative of the cases that had 'either failed to interpret the City Human Rights Law to fulfill its uniquely broad purposes, ignore the text of specific provision of the law, or both.' With the passage of the Restoration Act, these cases and others like them will no longer hinder the vindication of our civil rights."

(Morse, 165 AD3d at 67-68 [some internal quotation marks omitted], citing Williams, 61 AD3d at 67, quoting from transcript of Council debate).

If inaction tells us anything, it tells us that the majority is wrong to adhere to the pre-Restoration Act construction of "marital status." The fact is that the Council has had the opportunity to consider the impact of the broad construction I would adopt and to take corrective action ever since the Appellate Division decided Morse. It has declined to do so. And as this Court knows all too well, the Council has readily criticized the courts for failing to properly construe the NYCHRL (see Local Law No. 85 [2005] of City of NY § 1; Local Law No. 35 [2016], 2016 NYC Leg. Ann. 177, LMA at 18, codified as Administrative Code § 8—130[c]). Surely, if this construction was contrary to the Council's intent, the Council would have legislatively overruled it by now. The majority should not ignore that the Council has approved of the broad construction in the only way it can, by leaving it in place.

Significantly, construing marital status broadly for purposes of the Human Rights Laws to encompass intimate life partners who are neither married nor a domestic partnership is workable in practice. Parties and courts can rely on the factors first set forth by this Court in Braschi v Stahl Assocs. Co. to evaluate whether such relationships are similarly-situated, including, "the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services" (74 NY2d 201, 212-213 [1989]).^[FN9] Our courts have been making these assessments in the housing context since the 1980s, so it is familiar terrain. Our courts have also made these determinations of what constitutes a "family" in cases involving zoning (Baer v Town of Brookhaven, 73 NY2d 942, 943 [1989] [five unrelated elderly [*22]women who lived together in a home were a family]), domestic relations (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 26 [2016] [overruling a narrow definition of "parent" that excluded non-biological and non-adoptive caregivers]), and in domestic violence cases which often require evaluation of whether there was an "intimate relationship" (Matter of Mark W. v Damion W., 25 Misc 3d 1148, 1150 [Fam Ct 2009]).

In sum, the Human Rights Laws mandate that we liberally construe those laws to achieve their remedial purposes. To that end we must construe the NYCHRL "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio, 16 NY3d at 477-478). The majority has failed to convincingly explain why the construction I would adopt, which aligns with the dissents in Manhattan Pizza Hut and Levin and which the Appellate Division endorsed years ago is not reasonable.

Societal attitudes have evolved during the decades since this Court first decided that the NYSHRL's and NYCHRL's bans on discrimination based on "marital status" do not apply to discrimination based on the complainant's relationship to someone else. The number of unmarried partners has increased (Courtney G. Joslin, Discrimination in and Out of Marriage, 98 BU L Rev 1, 3-4 [2018] ["In 1960, there were fewer than one million unmarried cohabitants. Today, there are over eighteen million"]). "[T]he percentage of children living with unmarried, cohabitating parents more than doubled between 1997, the first year that census data on cohabitation was available, and 2017" (Greene v Esplanade Venture Partnership, 36 NY3d 513, 527 [2021] [Rivera, J., concurring], citing Gretchen Livingston, Pew Research Ctr., About one-third of U.S. children are living with an unmarried parent [Apr. 27, 2018], https://www.pewresearch.org/fact-tank/2018/04/27/about-one-third-of-u-s-children-are-living-with-an-unmarried-parent/). The majority of Americans support allowing unmarried couples to have the same legal rights as married couples (Nikki Graff, Key findings on marriage and cohabitation in the U.S. [Nov. 6, 2019], Pew Research Ctr., https://www.pewresearch.org/short-reads/2019/11/06/key-findings-on-marriage-and-cohabitation-in-the-u-s/). The reality is that people organize their personal lives in a variety of ways; they choose to marry or not marry or register as domestic partners based on personal circumstances and preferences (Greene, 36 NY3d at 527 [Rivera, J., concurring] ["(F)amilies are formed not solely by matrimony and blood but also with bonds of friendship and love"]). Democratically-enacted New York law now honors and protects that choice in specified areas of public and private life. The majority's decision to adhere to the narrow views of the past ignores both the law and New York's tradition of strong human rights protections against bias and animus. In the light of the present, the most reasonable construction of "marital status" is straightforward: discriminatory conduct against consenting adults based solely on the fact that they are unmarried intimate life partners is prohibited by the Human Rights Laws.

I dissent.

Order affirmed, with costs. Opinion by Judge Halligan. Judges Garcia, Singas, Cannataro and Troutman concur. Chief Judge Wilson dissents in an opinion. Judge Rivera dissents in a separate opinion.

Decided December 17, 2024