Sometimes a judge says what many of us are already thinking.  In Rivera v. Crowell & Moring L.L.P., Katherine B. Forrest was that judge.

While lengthy, Rivera reads like a garden-variety employment discrimination summary judgment opinion; that is, until we reach page 40.  After summarily dispatching with the plaintiff’s Title VII discrimination claims (and FMLA claims), Judge Forrest turned to the plaintiff’s remaining New York City Human Rights Law discrimination claims.  Rather than perform a “separate and independent analysis” of those claims that would require her construe the law broadly in plaintiff’s favor, she refused to exercise supplemental jurisdiction over these claims.  Her reasoning for the refusal was eye-opening.

Judge Forrest was troubled by the fact that the legal standard applicable to City law claims allows cases to proceed to trial based only on the “flimsiest evidence.”  Indeed, in Rivera, although Judge Forrest found that the “action is totally baseless and that no reasonable juror could conclude otherwise,” she also noted that the “current state of the law suggests that that standard applied to even such baseless claims could result in their survival,” which “frankly,” she wrote, “makes no sense.”

But Judge Forrest did not stop there.  While acknowledging that the New York City Council had every right to enact an anti-discrimination statute that is broader than its state and federal counterparts, she still “strongly urg[ed]” the City Council to revisit this standard and “tighten it as appropriate,” in part because, “it does not further the interests of justice to have insubstantial claims absorb the resources of our judicial system and crowd out meritorious ones.”

Judge Forrest was voicing the frustration that many employers and management-side attorneys have been voicing for some time now.  The problem is that this frustration is unlikely to persuade the City Council to address this issue in a satisfactory manner. Instead, the City Council remains headed in the opposite direction.  Just a couple of months ago, the Council’s Commission on Civil Rights held a hearing on a series of proposed bills, one of which aims to strengthen, not weaken, the City law’s existing liberal interpretation standard.

For employers then, we’ll repeat what we’ve said before: continue to focus on installing effective preventative measures in your workplace, because the easiest lawsuit to defeat is the one that never happened in the first place.