Commn on Human Rights v. Shalom Bombay 2, LLC OATH Index No. 544/15 (Apr. 23, 2015), modified on penalty, Commn Dec. & Order

(June 21, 2017), appended

Restaurant posted an employment advertisement that discriminated

based on national origin. Civil penalty of $5,000 and affirmative relief

recommended. Commission reduced civil penalty to $1,000.

_________________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

COMMISSION ON HUMAN RIGHTS

Petitioner

- against -

SHALOM BOMBAY 2 LLC, RAPHAEL GASNER,

and ALAN COHNEN

Respondents

__________________________________________________________

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

Petitioner, the New York City Commission on Human Rights, brought a complaint

against respondents, Shalom Bombay 2, LLC, Raphael Gasner, and Alan Cohnen, alleging that

they violated section 8-107 of the Administrative Code, by discriminating based on national

origin in October 2013, when they posted an employment advertisement for an Indian waiter

or waitress (ALJ Exs. 1, 2). Respondent Shalom Bombay 2, LLC, operates a Midtown

Manhattan restaurant, known as Shalom Bombay, which is owned and managed by respondents

Gasner and Cohnen (ALJ Ex. 2, Pet. Ex. 3).

One of petitioners attorneys repeatedly spoke with respondent Gasner on the phone in

August and September 2014 (Pet. Ex. 3). Though Gasner stated that he intended to submit an

answer and that he had hired an attorney, no answer was filed and no attorney contacted

petitioner for any of the respondents.

Respondents failed to appear for a conference scheduled for November 16, 2014. On

January 5, 2015, under Section 2-27(a) of OATHs rules, I granted petitioners motion to find

respondents in default and precluded them from participating in the hearing. Though I gave

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respondents until January 16, 2015, to move to vacate the default, they did not file such a motion

(Pet. Ex. 3).

At petitioners request, the trial scheduled for February 2, 2015, was adjourned to April

15, 2015. On April 15, 2015, respondents failed to appear for trial. After petitioner presented

sufficient proof of service of the complaint, amended complaint, and notices of trial, the trial

went forward in the absence of the respondents (ALJ Exs. 1, 2, 5, 6). See 48 RCNY 1-28(a),

1-45, 2-27(a) (Lexis 2014). The allegations in the amended complaint were deemed admitted.

See Admin. Code 8-111(c) (Lexis 2014) (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) (Lexis 2014). Petitioner also

presented documentary evidence and the testimony of one its employees, Ms. Canales.

For the reasons below, I find that respondents violated the Administrative Code and

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

ANALYSIS

The facts are undisputed. On October 30, 2013, Ms. Canales saw an advertisement

posted on Craigslist that stated, Experienced Indian Waiter or Waitress Wanted for Busy NYC

Restaurant (Tr. 9). Ms. Canales responded to the advertisement with two e-mails, one using her

own name and the other using the name George Harris (Pet. Ex. 2). Both e-mails were sent

with a feature that notifies the sender when an e-mail has been opened (Pet. Ex. 2). Both e-mails

were opened, but respondents did not reply to either of them (Pet. Ex. 2).

In response to a subpoena, Craigslist notified petitioner that the advertisement was paid

for with respondent Cohnens credit card. According to Craigstlists records, Cohnen used the

same Lexington Avenue address that Shalom Bombay 2, LLC, provided to New Yorks

Department of State and the State Liquor Authority (Pet. Ex. 3).

It is unlawful for an employer to circulate any advertisement which expresses, directly

or indirectly, any limitation, specification or discrimination as to national origin. Admin. Code.

8-107(1)(d). Based on the uncontested evidence, petitioner proved that respondents violated this

provision by posting an advertisement specifically seeking an Indian waiter or waitress.

Respondents qualify as an employer based on the unrefuted allegation in the complaint,

deemed an admission, that they employ 15 or more people. Admin. Code 8-102(5) (Lexis

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2014) (for purposes of employment discrimination claim under New York Citys Human Rights

Law, entity with five or more employees deemed an employer). Respondent Cohnen is

personally liable because he paid for the advertisement and he is also liable, along with

respondent Gasner, based on the unrefuted allegation, deemed admitted, that they are owners or

managers of restaurant. See McRedmond v. Sutton Place Restaurant and Bar, Inc., 95 A.D.3d

671, 673 (1st Dept 2012) (owner, general manager, and supervisor can be held liable for

employees discriminatory conduct); see also Admin. Code 8-107(13)(b)(1) (Lexis 2014)

(employer liable for unlawful discrimination by employee who exercised managerial or

supervisory responsibilities).

FINDING AND CONCLUSION

Petitioner proved that respondents discriminated based on national

origin, as alleged in the amended verified complaint.

RECOMMENDATION

Petitioner has requested a civil penalty of $7,500 (Tr. 13-14). Based on the proven

charge and relevant precedent, a lesser penalty is appropriate.

Where a party settles an employment advertising discrimination claim prior to a hearing,

petitioner routinely accepts a $2,500 civil penalty. See Settlements, NYC Commission on

Human Rights (2014), http://www.nyc.gov/html/cchr/html/settlements.shtml (listing 20 cases in

2014 where employers agreed to pay civil penalties of $2,500 for posting discriminatory

advertisement declaring a preference for female applicants). And in 2013, petitioner agreed to a

$2,500 civil penalty for a Welsh pub that posted a discriminatory advertisement that stated a

preference for British applicants. See British Pub Surrenders to Human Rights Commission,

N.Y. Times (June 20, 2013), available at In the News, NYC Commission on Human Rights,

http://www.nyc.gov/html/cchr/html/news/news.shtml The civil penalty recommendation after a

hearing generally ranges from $5,000 to $7,500. See Commn on Human Rights v. Crazy

Aslyum, LLC, OATH Index No. 2262/13, 2263/13, & 2264/13 at 9 (Jan. 30, 2014) ($5,000 civil

penalty recommended where respondents discriminated based on gender by posting a Craigslist

advertisement for a waitress); Commn on Human Rights v. Vudu Lounge, OATH Index No.

233/12 (Dec. 16, 2011), adopted, Commn Dec. & Order (Mar. 22, 2012) (civil penalty of

http://www.nyc.gov/html/cchr/html/settlements.shtmlhttp://www.nyc.gov/html/cchr/html/news/news.shtml

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$7,500 recommended where nightclub discriminated based on gender by advertising for a

hostess and would not accept a male applicants resume); Commn on Human Rights v. Cu29

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

recommended where respondents advertised for a female bartender and a pizza man).

The facts of this case are closer to Crazy Aslyum, LLC, than they are to Vudu Lounge or

Cu29 Copper Restaurant & Bar. Thus, a civil penalty of $5,000 is appropriate. In Vudu Lounge,

besides the discriminatory advertisement, there was additional evidence that respondents refused

to accept an application from a qualified applicant who went to their place of business. In Cu29

Copper Restaurant & Bar, the respondents posted discriminatory advertisements for two

different positions. Here, as in Crazy Aslyum, LLC, there was a single, discriminatory

advertisement for one job. There was no complaint from the public, there was no evidence of

how many people viewed the posting, and there was no direct evidence that any qualified

applicant was turned away. In response to the advertisement, petitioner sent two e-mails, both of

which were opened. However, the contents of the e-mails were not offered in evidence. There

was a discriminatory advertisement, but there was no additional proof that respondents refused to

hire otherwise qualified applicants.

Accordingly, I recommend imposition of a $5,000 civil penalty and the affirmative relief

of requiring respondents 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 purpose of the Citys Human Rights Law).

Kevin F. Casey Administrative Law Judge April 23, 2015 SUBMITTED TO:

CARMELYN P. MALALIS Commissioner

APPEARANCES: KATHERINE CARROLL, ESQ. Attorney for Petitioner No Appearances by Respondents

15-0544Shalom Bombay 2_Signed DO_June 21 2017_Redacted