Comm’n on Human Rights v. Rozario OATH Index No. 1273/15 (June 3, 2015), modified on penalty, Comm’n Dec. & Order

(June 21, 2017), appended

Evidence established that respondent posted an advertisement on

Craigslist for a “waitress,” in violation of the Human Rights Law.

Administrative law judge recommended a civil penalty of $5,000

and affirmative relief. Commission reduced civil penalty to $500.

_______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

COMMISSION ON HUMAN RIGHTS

Petitioner

- against –

SEBASTIAN ROZARIO

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

Petitioner, the New York City Commission on Human Rights (“Commission”), initiated

this action against respondent, Sebastian Rozario, under section 8-109(c) of the New York City

Administrative Code (“Human Rights Law”). By a verified complaint, the Commission charges

respondent with discriminating based on gender by circulating an employment advertisement for

a “waitress” on Craigslist, in violation of section 8-107(1)(d) of the Human Rights Law.1

Admin. Code § 8-107(1)(d) (Lexis 2015). The Commission duly served the complaint on

respondent by first class mail on September 26, 2014. To date, respondent has failed to file an

answer.

On February 26, 2015, the Commission submitted a motion seeking to have respondent

declared in default and precluded from participating in further proceedings, pursuant to section

2-27(a) of the OATH rules. By memorandum decision dated March 31, 2015, I granted the

Commission’s motion, finding respondent in default and precluding him from participating in the

1 The verified complaint also alleges violation of Title VII of the Civil Rights Act of 1964 which prohibits

discrimination based on the same acts. See 42 U.S.C. § 2000e et seq. The Commission lacks jurisdiction to issue

any remedy based on federal civil rights statutes. Jaggi v. NYC Police Dep’t, OATH Index No. 1498/03 at 4 (June

29, 2004), adopted, Comm’n Dec. & Order (June 29, 2004). The claim will not be considered here.

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trial scheduled for April 13, 2015 (Pet. Ex. 2). The memorandum decision indicated that

respondent had until April 10, 2015, to file a motion to vacate the default, pursuant to section 2-

27(b) of OATH’s rules. He failed to do so.

On April 13, 2015, the Commission appeared for trial and presented documentary

evidence and a witness who testified in support of its case. Respondent did not appear. The

Commission proved that respondent violated section 8-107(1)(d) of the Human Rights Law for

which I recommend a $5,000 civil penalty and other affirmative relief.

ANALYSIS

In the verified complaint petitioner alleges that respondent violated the Human Rights

Law by using the word “waitress” in an advertisement he posted on the internet at

http://newyork.craigslist.org (“Craigslist”) on or about July 29, 2014 (Pet. Ex. 1C). Section 8-

107(1)(d) provides that it is an unlawful discriminatory practice for:

any employer . . . to declare, print or circulate or cause to be

declared, printed or circulated any statement, advertisement or

publication . . . in connection with prospective employment, which

expresses, directly or indirectly, any limitation, specification or

discrimination as to . . . gender . . . or any intent to make any such

limitation, specification or discrimination.

Admin. Code § 8-107(1)(d).

The allegations in the verified complaint are deemed admitted. Admin. Code § 8-111(c)

(“Any allegation in the complaint not specifically denied or explained shall be deemed admitted

and shall be so found by the commission unless good cause to the contrary is shown.”); 47

RCNY § 1-14(b) (same); see Comm’n on Human Rights v. Shalom Bombay 2, LLC, OATH

Index No. 544/15 at 2 (Apr. 23, 2015). Thus, the following facts stated in the verified complaint

are established. Respondent Sebastian Rozario is an employer as defined by section 8-102 of the

Human Rights Law, who employs 15 or more employees. On or about July 29, 2014, respondent

posted on Craigslist an advertisement seeking a waitress for a restaurant in New York City that

seats 25 people (Pet. Ex. 1C at ¶3).

At trial, petitioner called as its witness, Stephanie Canales, who is employed by the

Commission as a tester. As part of her job, she looks for discriminatory advertisements on

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websites such as Craigslist. On July 29, 2014, when searching the New York City jobs section

of Craigslist, Ms. Canales found an ad for a waitress and printed it. The ad read as follows:

Waitress with barista experience as well (Brooklyn):

Hello !

Waitress/ Barista

We are a small 20 seating [sic] restaurant in East village,

Brooklyn. We are looking for experienced waitress who can make

cappucinno [sic] and has general barista experience as well. Good

food and wine. Potential for good tips if you can sell the items on

the menu. We appreciate a team player who has positive energy.

Please be dependable. Please forward your resume with contact

details and availability. All the best in your endeavors.

Sebastian Rozario

(Pet. Ex. 4). Ms. Canales sent separate e-mail messages to respondent in response to the ad: one

using a male name and another using a female name. The e-mail messages were sent with “yes-

ware,” a Gmail add-on that notifies the sender when the e-mail message has been opened.

Neither message was opened (Pet. Ex. 5).

Ms. Canales sent a copy of the ad, with a memorandum to petitioner’s Law Enforcement

Bureau recommending that the Bureau subpoena Craigslist for information that would identify

the individual who placed the advertisement because use of the word “waitress” impermissibly

implied the position was to be filled by a female (Pet. Ex. 5). Petitioner did so. The response to

its subpoena to Craigslist shows that the ad was posted and paid for by respondent Sebastian

Rozario (Pet. Exs. 1 at ¶¶5-7, 1A, 1B).

When Commission staff attorney Nermina Z. Arnaud attempted to discuss the complaint

allegations with respondent by phone, preliminary to filing the case at OATH, respondent hung

up on her and did not return a subsequent phone call made by the Commission (Pet. Ex. 1 at ¶9).

Respondent failed to appear at a scheduled pre-trial conference in this case, despite duly served

notice (Pet. Exs. 1 at ¶10, 1D).

The issue is whether petitioner is entitled to relief as a matter of law based on the

allegations in the verified complaint and the evidence presented by petitioner at trial. It is well

established that petitioner bears the burden of proving a prima facie case of discrimination, even

where respondent has defaulted. Comm’n on Human Rights v. Crazy Asylum, LLC, OATH Index

Nos. 2262/13, 2263/13 & 2264/13 at 4 (Jan. 30, 2014); Comm’n on Human Rights v. Shahid,

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OATH Index No. 1381/13 at 3 (May 13, 2013), adopted, Comm’n Dec. & Order (July 26, 2013);

Comm’n on Human Rights v. Rent The Bronx, Inc., OATH Index No. 1619/11 at 7 (July 27,

2011), adopted, Comm’n Dec. & Order (Oct. 27, 2011). I find the Commission has met its

burden by proving that respondent placed an advertisement that “expressed a limitation based on

gender.” Crazy Asylum, LLC, OATH 2262/13 at 5.

The facts presented are similar to those in Crazy Asylum, LLC, where respondents were

found to have violated the Human Rights Law by posting a Craigslist ad that sought

“waitresses.” There ALJ Spooner reasoned that:

While the word “waiter” is defined as “one that waits on another;

especially: a person who waits tables (as in a restaurant),” the

word “waitress” means “a woman who waits tables (as in a

restaurant).” Merriam-Webster Dictionary (Online ed. 2014).

Id. Thus, respondents had unlawfully expressed a limitation based on gender by using the words

“waitresses” and “waitress” in an employment advertisement that violated the plain language of

section 8-107(1)(d) of the Human Rights Law. Id.

Likewise, here, respondent’s placement of the ad seeking a “waitress” violated section 8-

107(1)(d) of the Human Rights Law. This is so even in the absence of direct evidence that

respondent considered only female applicants for the job. Id. at 6 (fact that after placing ad for

“waitresses,” respondents subsequently interviewed a male job applicant did not “remove their

liability for publishing a job advertisement for women only”). “The plain language of the

Human Rights law, making it a violation to post a gender-specific job advertisement, demands a

finding of discrimination based on the advertisement alone.” Id.

FINDINGS AND CONCLUSION

1. Petitioner established that respondent is an employer, as

defined by section 8-102 of the Human Rights Law.

2. Petitioner’s evidence established that, on July 29, 2014,

respondent placed an advertisement for employment which

expressed a limitation as to gender, in violation of section

8-107(1)(d) of the Human Rights Law.

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RECOMMENDATION

Under section 8-126(a) of the Administrative Code, the Commission may impose a civil

penalty of up to $125,000 to “vindicate the public interest.” Petitioner has requested a civil

penalty of $7,500 and affirmative relief in the form of anti-discrimination training.

For discrimination in hiring under the Human Rights Law, recent civil penalties after a

trial have ranged from $5,000 to $15,000. See Comm’n on Human Rights v. Cu29 Copper

Restaurant & Bar, OATH Index No. 647/15 at 5 (Apr. 7, 2015) ($7,500 civil penalty and

affirmative relief for restaurant that placed ad for “female bartender” and “pizza man”); Comm’n

on Human Rights v. Frambiose Pastry, Inc., OATH Index Nos. 727/13 & 728/13 (May 3, 2013),

adopted, Comm’n Dec. & Order (Sept. 25, 2013) (civil penalty of $15,000 and affirmative relief

recommended where respondents discriminated based on gender and race, by posting an

advertisement for a “counter girl” and refusing to hire an applicant because she was black);

Comm’n on Human Rights v. Vudu Lounge, OATH Index No. 233/12 (Dec. 16, 2011), adopted,

Comm’n Dec. & Order (Mar. 22, 2012) ($7,500 civil penalty recommended for nightclub that

discriminated based on gender by advertising for a “hostess” and refusing to accept application

from male applicant); Comm’n on Human Rights v. Stars Model Management, OATH Index No.

1464/05 at 14-15 (Mar. 7, 2006), adopted, Comm’n Dec. & Order (Apr. 13, 2006), aff’d, 13

Misc.3d 1220A (Sup. Ct. N.Y. Co. 2006) ($15,000 civil penalty imposed on employment agency

that handled hundreds of bookings for companies and told respondent “we don’t take niggers in

the show”); cf. Crazy Asylum, LLC, OATH 2262/13 at 7 ($5,000 civil penalty and affirmative

relief recommended on summary judgment granted in favor of petitioner where respondents

posted Craigslist advertisement for “waitresses”). Cases on the higher end of the range involve

additional acts of discrimination beyond placement of a single discriminatory ad. More recently,

the tribunal has noted the more limited range of $5,000 to $7,500 for a post-trial civil penalty in a

case of employment advertising discrimination. Shalom Bombay 2, LLC, OATH 544/15 at 3

($5,000 civil penalty recommended for restaurant that placed Craigslist ad for an “experienced

Indian waiter or waitress”).

The factors in determining an appropriate civil penalty generally include the

egregiousness of the discrimination and the period of time over which it continued, the potential

impact of respondent’s discrimination on the public, and whether there are any previous findings

of discrimination against the respondent. Cu29 Copper Restaurant & Bar, OATH 647/15 at 4-5

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(citing 119-121 East 97th St. Corp. v. NYC Comm’n on Human Rights, 220 A.D.2d 79, 88-89

(1st Dep’t 1996)); see also Rent The Bronx, Inc., OATH 1619/11 at 13 ($5,000 civil penalty

imposed where real estate broker posted discriminatory advertisement on the internet and

discriminated against tester based on source of income; penalty mitigated by proof of financial

hardship, broker’s acceptance of responsibility, and an absence of evidence of impact on the

public). In addition, the civil penalty may be enhanced based on the size of the business. Crazy

Asylum, LLC, OATH 2262/13 at 9.

In cases with similar facts to this one, a civil penalty of $5,000 was recommended in

Crazy Asylum, LLC, OATH 2262/13, where respondent posted a Craiglist ad seeking

“waitresses”; the same penalty was recommended in Shalom Bombay 2, LLC, OATH 544/15,

where a restaurant posted an ad for “an experienced Indian waiter or waitress”; and a civil

penalty of $7,500 was recommended in Cu29 Copper Restaurant & Bar, OATH 647/15, where a

restaurant placed an ad for a “female bartender” and a “pizza man.” In all of those cases, like

this one, there was no evidence of protracted discrimination, no prior findings of discrimination

against the respondents, and no evidence of a significant impact on the public. Nor was there a

showing that the penalty should be enhanced based on the size of respondents’ business

operations. See, e.g., Crazy Asylum, LLC, OATH 2262/13 at 9.

Considering this case as a whole, I recommend the imposition of a civil penalty of $5,000

and the affirmative relief of requiring respondent’s management and hiring staff to undergo anti-

discrimination training. See Admin. Code § 8-120(a) (authorizing the Commission to require

respondent to take affirmative action to “effectuate the purposes” of the City’s Human Rights

Law).

Petitioner cited Cu29 Copper Restaurant & Bar in support of its request for a $7,500 civil

penalty, and argues the penalty should be aggravated to reflect respondent’s failure to cooperate

with the Commission’s investigation. In Cu29 Copper Restaurant & Bar, the tribunal found that

respondent’s failure to cooperate and provide discovery to the Commission, file an answer, or

appear for the second pre-trial conference or trial were aggravating factors in recommending a

civil penalty “‘because it is in the public interest to have individuals respond and participate in a

process designed to cure discriminatory practices . . . .’” OATH 645/15 at 5 (quoting Comm’n

on Human Rights v. Chae Choe, OATH Index No. 2617/09 at 9 (Sept. 25, 2009), adopted,

Comm’n Dec. & Order (Dec. 10, 2009)).

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Although respondent did fail to cooperate, as in Cu29 Copper Restaurant & Bar, the facts

of this case are more akin to those in Crazy Asylum, LLC, and Shalom Bombay 2, LLC, where

petitioner presented no evidence of discriminatory treatment beyond the ad itself. See Crazy

Asylum, LLC, OATH 2262/13 at 4 (the male tester was interviewed for the position and the

interviewer did not mention the ad which sought “waitresses” or indicate that the restaurant was

hiring only women); Shalom Bombay 2, LLC, OATH 544/15 at 4 (although there was a

discriminatory ad, “there was no additional proof that respondents refused to hire otherwise

qualified applicants”). Respondent here did not respond to either e-mail message sent by the

tester, and there was no proof that respondent excluded male applicants who responded to the ad.

Tynia D. Richard

Administrative Law Judge

June 3, 2015

SUBMITTED TO:

CARMELYN P. MALALIS

Commissioner

APPEARANCES:

VAUGHN BROWN, ESQ.

Attorney for Petitioner

No appearance by or for Respondent