The Quiet Misapplication of New York’s Human Rights Laws

That is why Krimsky v. WestRock Company, No. 23-CV-06252 (MMG) (S.D.N.Y. Sept. 9, 2026), deserves close scrutiny. The issue is not simply that Judge Margaret M. Garnett granted summary judgment dismissing Marshall Krimsky’s age- and disability-discrimination and retaliation claims while allowing his New York Labor Law commission claim to proceed. Courts dismiss weak discrimination cases every day, and the NYSHRL and NYCHRL do not guarantee any litigant a trial merely because discrimination is alleged. The more important question is whether Krimsky’s State and City claims were actually evaluated under the standards New York enacted, or whether those claims were effectively pulled back into the narrower federal architecture that New York City and New York State spent years trying to escape.

The answer begins on page nine of the decision, in footnote 3.

Footnote 3 Is Not a Minor Citation Issue

Under the heading “McDonnell Douglas Framework,” the court states that “[i]n the absence of direct evidence,” discrimination and retaliation claims under the ADA, ADEA, NYSHRL, and NYCHRL are analyzed under the McDonnell Douglas burden-shifting framework. The court then proceeds through the traditional sequence familiar to every employment lawyer: plaintiff establishes a prima facie case; the employer articulates a legitimate nondiscriminatory reason; the presumption disappears; and plaintiff must produce evidence from which unlawful discrimination or retaliation can reasonably be found.

Footnote 3 provides the supporting authority. For the ADA, the court cites McBride v. BIC Consumer Products Manufacturing Co., 583 F.3d 92, 96 (2d Cir. 2009). For the ADEA and NYSHRL, it cites Downey v. Adloox, Inc., 789 F. App’x 903, 905 (2d Cir. 2019). For the NYCHRL, it cites Goodman v. Port Authority of New York & New Jersey, 850 F. Supp. 2d 363, 385 (S.D.N.Y. 2012).

That footnote matters because it establishes the analytical structure for everything that follows. The problem is not that McDonnell Douglas has somehow become forbidden in New York discrimination cases. It has not. The problem is treating McDonnell Douglas as though it supplies one governing substantive framework for four different statutes without first confronting what New York City and New York State changed about their own Human Rights Laws. That distinction is especially important at summary judgment because the New York laws do not necessarily require a plaintiff to prove that an employer’s stated reason was entirely false before discrimination can be actionable. A legitimate business reason and an unlawful discriminatory motive can coexist. The existence of one does not necessarily establish the absence of the other.

That is precisely why the chronology and the cases matter.

New York City rejected federal equivalency more than twenty years before Krimsky. On October 3, 2005, the City enacted Local Law No. 85, the Local Civil Rights Restoration Act of 2005, after concluding that the NYCHRL had been construed too narrowly. The City Council amended Administrative Code § 8-130 to require that the NYCHRL be construed liberally for the accomplishment of its “uniquely broad and remedial purposes,” regardless of whether comparable federal or State civil-rights laws had been similarly construed. The purpose was not to prohibit courts from consulting federal precedent. It was to prevent federal and State doctrine from controlling the outer limits of City law.

The First Department confronted that mandate directly in Williams v. New York City Housing Authority, 61 A.D.3d 62, 66–69 (1st Dep’t 2009). The Court explained that the Restoration Act required an “independent liberal construction analysis” in all circumstances and expressly warned that decisions failing to respect the NYCHRL’s distinctive text and purposes had effectively been legislatively overruled. Williams did not merely announce that the City law was “broader.” It instructed courts that the method of analysis itself had to change because the NYCHRL’s protections were intended to extend beyond their federal and State counterparts.

The Court of Appeals reinforced that direction in Albunio v. City of New York, 16 N.Y.3d 472, 477–78 (2011), holding that the NYCHRL must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” That principle became important not simply because it favored broader remedies, but because it confirmed that doubts concerning the scope of the City law were not to be resolved reflexively by importing narrower federal doctrine.

Then came Bennett v. Health Management Systems, Inc., 92 A.D.3d 29, 34–45 (1st Dep’t 2011), which bears directly on the summary-judgment problem presented in Krimsky. Bennett expressly addressed “the evidentiary showing required at the summary judgment stage” under the NYCHRL and rejected an approach that would allow the traditional McDonnell Douglas prima facie structure to become the exclusive route through which a discrimination plaintiff survives dispositive motion practice. The Court recognized that the ultimate inquiry must account for the possibility of mixed motives and determine whether the record permits a reasonable jury to find that discrimination played a role. That is materially different from simply asking whether a plaintiff has disproved an employer’s legitimate explanation as pretext.

The Second Circuit followed the same direction in Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 109–13 (2d Cir. 2013), emphasizing that NYCHRL claims must be analyzed “separately and independently” from federal and State claims. That point is particularly important in evaluating Krimsky because the district court later relies on Mihalik for the proposition that summary judgment is appropriate only when discrimination “played no role,” while footnote 3 begins the analysis by placing the NYCHRL inside the same general McDonnell Douglas framework as the ADA and ADEA.

Even that body of appellate authority did not end the problem. On March 28, 2016, New York City enacted Local Law No. 35 because courts were still not uniformly applying the independent-construction mandate. The City Council expressly stated that the amendment was intended to provide additional guidance for development of an independent body of NYCHRL jurisprudence that would be “maximally protective of civil rights in all circumstances.” It did something even more significant: it identified Albunio, Bennett, and the majority opinion in Williams by name as decisions that had correctly understood and applied the liberal-construction requirement.

That legislative history was later discussed by the Court of Appeals in Chauca v. Abraham, 30 N.Y.3d 325, 333–34 (2017). The Court recognized that the City Council’s earlier efforts had been only partially successful and that Local Law No. 35 reflected a continuing legislative effort to prevent the NYCHRL from being narrowed through judicial borrowing from federal law. The First Department made the same point even more sharply in Morse v. Fidessa Corp., 165 A.D.3d 61, 68–69 (1st Dep’t 2018), quoting the 2016 Committee Report’s concern that some courts had continued to construe the law narrowly despite the 2005 Restoration Act. Morse emphasized that Local Law No. 35 required courts to look to Williams, Bennett, and Albunio as authoritative guides to the NYCHRL’s independent construction.

That history materially changes how footnote 3 should be read. By the time Krimsky was decided on September 9, 2026, the Restoration Act had been law for nearly twenty-one years. Williams had been controlling First Department authority for more than seventeen years. Albunio and Bennett had been on the books for approximately fifteen years. Mihalik had been Second Circuit authority for more than thirteen years. Local Law No. 35 had been in effect for more than ten years, and both Chauca and Morse had already explained why the City Council found repeated legislative intervention necessary.

There is therefore no credible retroactivity explanation for treating the NYCHRL as though its analytical framework had only recently diverged from federal law. Every challenged employment action in Krimsky occurred after the 2005 Restoration Act, after Williams, after Bennett, after Mihalik, and after the City Council’s 2016 reinforcement of the independent-construction mandate.

That makes the court’s citation to Goodman in footnote 3 more consequential than an ordinary citation choice. Goodman, a 2012 federal district-court decision, cannot carry the proposition that the NYCHRL simply follows the same McDonnell Douglas framework as the federal statutes without qualification when New York appellate authority and subsequent legislation had already instructed courts to treat the City law independently.

The City Council mandated independent construction in 2005; Williams, Albunio, and Bennett established its substantive and summary-judgment boundaries; the Second Circuit confirmed its independent reach in Mihalik; and when judicial drift persisted, the City Council intervened again in 2016—prompting Chauca and Morse to reaffirm why federal borrowing remained impermissible.

Footnote 3 therefore cannot be dismissed as a minor citation issue. It identifies the doctrinal starting point from which the court evaluates everything that follows. If that starting point improperly collapses the NYCHRL into a federal framework that New York City spent more than two decades separating it from, the problem necessarily extends beyond the footnote. It affects the treatment of motive, pretext, mixed evidence, disputed factual inferences, and ultimately whether the plaintiff’s City Human Rights Law claim reaches a jury.

The NYSHRL Requires the Same Historical Precision

The NYSHRL presents a somewhat different history, but the same concern. For years, courts routinely treated NYSHRL employment-discrimination claims as largely coextensive with federal law. That historical practice explains why older federal decisions so often state that Title VII, ADEA, ADA, and NYSHRL claims are analyzed under the same framework. But that history cannot be treated as though it continued unchanged after 2019.

On August 12, 2019, New York enacted Chapter 160 of the Laws of 2019. Among other changes, the Legislature amended Executive Law § 300 to require that the NYSHRL “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.” The amendment also directs that exceptions and exemptions be construed narrowly to maximize deterrence of discriminatory conduct.

That language directly addresses the longstanding judicial practice of using federal employment-discrimination doctrine as the interpretive benchmark for the State law. It does not abolish every analytical tool developed under federal law, and it would be an overstatement to say that McDonnell Douglas simply disappeared from NYSHRL litigation. But it does mean that federal doctrine can no longer operate as the substantive ceiling on the State statute merely because an older line of cases treated the two as coextensive.

The effective date also matters. In Wright v. White Plains Hospital Medical Center, 237 A.D.3d 1143, 1144–45 (2d Dep’t 2025), the Second Department expressly recognized that the amendment became effective August 12, 2019, and applies to causes of action filed on or after that date. More important for present purposes, Wright did not describe the amendment as a minor interpretive adjustment. It stated directly that, “[a]s a result of the amendment, the NYSHRL now aligns with the standards of the New York City Human Rights Law.” The court then applied the NYCHRL-derived inquiry and asked whether the employer had demonstrated that there was “no evidentiary route” by which a jury could find that discrimination played a role in the employment decision.

That is a very different proposition from saying that an ADEA claim and a modern NYSHRL claim simply proceed together under the same federal McDonnell Douglas framework.

The Court of Appeals had already laid the foundation. In Syeed v. Bloomberg L.P., 41 N.Y.3d 446, 451 (2024), the Court recognized that both the NYSHRL and NYCHRL contain liberal-construction mandates and held that courts must construe both laws broadly in favor of discrimination plaintiffs to the extent reasonably possible. Later that same year, in Matter of McCabe v. 511 West 232nd Owners Corp., 43 N.Y.3d 365, 392–93 (2024), the Court of Appeals went further and stated that construction of the NYSHRL and NYCHRL now “follow the same interpretative path.”

Those decisions matter because they answer a potential defense of footnote 3. One might argue that Executive Law § 300 merely imposed a general liberal-construction instruction while leaving the older federal analytical structure largely intact. But Syeed and McCabe demonstrate that New York’s highest court understood the amendments as bringing the State and City laws onto the same interpretive path. Whatever unresolved questions may remain about the precise application of particular NYCHRL doctrines to the NYSHRL, the pre-2019 assumption of routine federal-State equivalency plainly cannot simply be carried forward without analysis.

The First Department made the point even more directly in Farmer v. Mizuho Securities USA LLC, 249 A.D.3d 463 (1st Dep’t 2026), decided on May 12, 2026—less than four months before Krimsky. There, the court stated that “in 2019, the State HRL was amended to align its standards with the City HRL,” citing Executive Law § 300 and Syeed. That language is difficult to reconcile with a generalized proposition that the ADEA and NYSHRL continue to be governed by the same substantive analytical framework simply because an older federal case said so before the amendment took effect.

That is the problem with footnote 3. Downey v. Adloox, Inc., 789 F. App’x 903, 905 (2d Cir. 2019), is cited for the broad proposition that ADEA and NYSHRL claims proceed under the same McDonnell Douglas framework. But Downey reflects the pre-amendment understanding of the NYSHRL. The opinion in Krimsky does not identify which version of the State law Downey applied, does not discuss whether Chapter 160 altered the proposition for which Downey is cited, and does not explain why a pre-amendment federal equivalency case remains sufficient authority for post-2019 conduct.

That omission is especially significant because Krimsky was not dealing only with conduct occurring before the statutory change. The challenged actions identified by the court included the withholding of the Pepperidge Farm commission in 2022, the 2023 performance evaluation, and the 2024 performance-improvement plan. Those events occurred years after the Legislature amended Executive Law § 300. The opinion therefore was required to grapple with the amended statute as applied to those later acts rather than simply treating the entire NYSHRL claim as analytically interchangeable with the ADEA.

There is a legitimate qualification, and it should be acknowledged. Courts have not always agreed on whether every aspect of post-amendment NYSHRL liability is completely coextensive with the NYCHRL. As recently as 2026, lower courts continued to note some uncertainty over whether the amended State standard is identical to the City standard in every doctrinal respect or merely moves substantially closer to it. That debate is real and should not be obscured.

But that debate does not revive the pre-2019 rule.

The unresolved question is how completely the amended NYSHRL incorporates the NYCHRL’s substantive standards. The unresolved question is not whether courts may continue to treat the modern NYSHRL as though the Legislature never amended Executive Law § 300.

By September 2026, the legal landscape was no longer obscure. The Legislature had changed the statute seven years earlier. The Court of Appeals had instructed in Syeed that both Human Rights Laws be construed broadly. It had stated in McCabe that the two laws now follow the same interpretive path. The Second Department had held in Wright that the amended NYSHRL “now aligns” with the NYCHRL. And the First Department had repeated in Farmer that the 2019 amendments aligned the State law with the City law.

Against that body of authority, reliance on Downey without confronting the statutory change is not just a matter of citing an older case. It raises the more serious question whether the court began its analysis from a premise that New York had already legislatively and judicially displaced.

The Effective-Date Argument Does Not Cure the Problem

The most obvious response to this criticism is that some of the events in Krimsky began in 2019 and that statutory amendments generally are not applied retroactively. That point has to be taken seriously. Criticism of a federal court should not depend upon blurring the line between pre-amendment and post-amendment conduct.

The problem is that Krimsky did not involve one employment action occurring at one point in time. The court identified several allegedly discriminatory acts: the 2019 reassignment, the withholding of the Pepperidge Farm commission, the 2023 negative performance evaluation, and the 2024 performance-improvement plan. Those events did not arise under one statutory regime.

If the 2019 reassignment occurred before the relevant NYSHRL amendment became effective, then the older standard may govern that discrete act. That is a legitimate temporal issue and should be analyzed as such. But it does not follow that the same pre-amendment framework governs employment actions occurring in 2022, 2023, and 2024. Those later acts arose years after New York amended Executive Law § 300 and after the broader post-2019 statutory regime had taken effect.

That distinction required the court to separate the conduct by date and determine which version of the NYSHRL governed each challenged action.

The opinion does not do that.

Instead, footnote 3 states the proposition categorically: ADEA and NYSHRL claims are analyzed under the same McDonnell Douglas framework, with Downey cited as authority. The subsequent discrimination analysis then addresses the reassignment, commission dispute, negative review, and PIP together, without identifying whether different statutory standards govern different acts.

That is the precise effective-date problem.

A potentially pre-amendment event cannot operate as a doctrinal anchor that pulls later employment actions backward into the same legal regime. If one act is governed by the former NYSHRL and later acts are governed by the amended statute, the analysis has to reflect that distinction. Otherwise, the court effectively applies the older framework to conduct that occurred after the Legislature changed the law.

The point is especially important here because the later acts were not incidental background facts. They were among the very employment decisions the court identified as the basis for Krimsky’s discrimination claims. The Pepperidge Farm commission dispute arose in 2022. The challenged performance evaluation concerned 2023. The PIP was imposed in 2024. Those are not merely continuing effects of a 2019 decision. They are later employment actions requiring their own legal analysis.

The effective-date issue therefore does not answer the criticism of footnote 3. It narrows the criticism and makes it more precise.

The question is not whether the amended NYSHRL should have been applied retroactively to every fact in the record. The question is whether the court distinguished between potentially pre-amendment conduct and plainly post-amendment conduct before applying a single generalized framework to both.

It did not.

And the NYCHRL presents no comparable temporal problem at all. The City’s independent-construction mandate had been in place for years before any of the events at issue in Krimsky. Whatever effective-date argument may exist as to one 2019 NYSHRL event, it cannot explain the treatment of the City claim.

The Opinion Recognizes the Broader Standard but Does Not Allow It to Control the Analysis

What makes Krimsky particularly instructive is that the court did not overlook the broader New York causation standard. It expressly recognized it. After beginning with the unified McDonnell Douglas framework, the court acknowledged that the State and City claims require materially different treatment from the federal claims. The opinion states that under the NYSHRL and NYCHRL, age or disability need only be “a motivating factor,” and that summary judgment is appropriate only where the record establishes as a matter of law that discrimination “played no role.”

That should have changed the remainder of the analysis. If discrimination need only play some role, the question is not simply whether WestRock possessed legitimate reasons for its decisions, nor whether Krimsky could prove that those reasons were entirely false. The inquiry becomes whether the evidence, considered collectively and with reasonable inferences drawn in Krimsky’s favor, could permit a jury to conclude that age or perceived disability also influenced the treatment he received. A legitimate business explanation can coexist with discriminatory motivation. Performance concerns can be real and discrimination can still contribute to what follows. An employer can genuinely reorganize a business, genuinely criticize an employee, and still allow a protected characteristic to influence the manner in which that employee is treated.

The opinion nevertheless returns almost immediately to the familiar federal formulation, concluding that Krimsky failed to establish a prima facie case ‘under either federal or state law.’ That collapse exposes the exact trap Bennett warned against: treating the employer’s proffered business justification as dispositive unless the plaintiff can prove it was entirely fabricated. Under traditional federal McDonnell Douglas analysis, the inquiry routinely defaults to pretext-only—forcing the employee to dismantle the employer’s legitimate business explanation. But under Bennett and Williams, the presence of a genuine performance dispute or a real reorganization does not defeat the claim. Summary judgment is impermissible unless the employer proves, as a matter of law, that discrimination played no role in the challenged decisions. By demanding that Krimsky disprove WestRock’s stated concerns rather than asking whether bias coexisted with them, the court quietly substituted federal pretext requirements for New York’s mixed-motive mandate.

The distinction is not merely semantic. Under traditional pretext analysis, considerable attention is placed on whether the employer’s articulated explanation is false, inconsistent, or unworthy of belief. Under a mixed-motive framework, however, the existence of a legitimate explanation does not end the inquiry because the employer may have acted for more than one reason. The critical question is whether the plaintiff has identified evidence from which a factfinder could conclude that the protected characteristic contributed to the challenged treatment. If that possibility remains, the employer has not established that discrimination “played no role.”

That is why the legal standard must do more than appear in the opinion. It must alter what the evidence is permitted to prove. The difficulty in Krimsky is that the court articulated the broader New York rule but continued to evaluate the evidence through an analytical structure developed for the federal claims. The result is an opinion that recognizes mixed motive doctrinally while repeatedly resolving the evidentiary questions as though the plaintiff still had to demonstrate conventional federal pretext.

Parker’s Statement Illustrates the Consequence of That Analytical Choice

The treatment of Nickie Parker’s alleged statement is one of the clearest examples.

According to the record described by the court, when Krimsky objected to the compensation change, Parker allegedly told him that he could quit if he did not like the change and stated, “I hope you saved enough money.” The context matters. Krimsky was an older employee asserting age discrimination. The statement allegedly occurred during a discussion about a substantial change in his compensation and the possibility that he would leave WestRock.

The court concluded that the statement was not discriminatory on its face and “in no way evinces discrimination.” It further invoked the NYCHRL principle that the statute does not operate as a general civility code protecting against petty-slights and trivial inconveniences, reasoning that the surrounding circumstances did not support an age-based inference because Parker and Krimsky were discussing compensation and his possible departure.

That analysis is problematic not because the court was required to find the statement discriminatory. It was not. The difficulty is that it effectively resolves the meaning of an ambiguous statement against the nonmovant. Parker’s alleged remark is reasonably capable of more than one interpretation. A jury could hear it and conclude that she meant nothing more than that Krimsky should be financially prepared if he elected to quit. But a jury also could hear a manager tell an older employee, while discussing reduced compensation and his possible exit from employment, that she hoped he had “saved enough money” and understand that statement as referring to accumulated savings, retirement readiness, or an expectation that he should be financially prepared to leave the workforce.

That does not make the statement direct evidence of age discrimination. It does make the statement potentially relevant circumstantial evidence.

The distinction is important because the court’s reliance on the petty-slights doctrine risks confusing the actionable conduct with the evidence used to prove motive. A remark may be insufficient, standing alone, to constitute an independently actionable discriminatory act while still providing circumstantial evidence concerning why a separate employment decision occurred. The question is not whether saying “I hope you saved enough money” itself violated the Human Rights Laws. The question is whether that statement, considered with the compensation dispute, the treatment of Krimsky’s position, and the later performance actions, could contribute to a reasonable inference that age played some role.

Under a “played no role” standard, that distinction matters. A court does not have to accept Krimsky’s interpretation of the remark. But at summary judgment it should not select the innocent interpretation simply because that interpretation is plausible. Where two reasonable inferences exist, the issue ordinarily belongs to the factfinder. Otherwise, the broader mixed-motive standard loses much of its force because potentially probative circumstantial evidence is neutralized one item at a time before the record is ever considered as a whole.

The Commission Dispute Presents the Same Problem From a Different Direction

The Pepperidge Farm commission dispute further demonstrates the tension between the court’s stated standard and its treatment of the record.

WestRock maintained that Krimsky was not entitled to the commission because, in management’s view, he was not a commissioned employee at the relevant time. The court accepted that position for purposes of the discrimination analysis, explaining that the relevant WestRock managers did not believe he was entitled to the commission. Yet the opinion later acknowledged that the underlying compensation record was not clear. The parties disputed whether Krimsky resumed earning commissions after his transfer, what van der Kloet had promised him, and whether he was supposed to be “trued up” or otherwise made whole. The court expressly stated that the record did not clarify whether Krimsky had returned to commission status after the first year or instead remained on a fixed compensation arrangement.

When the court reached the New York Labor Law claim, that uncertainty became a jury question. The court held that if a jury credited Krimsky’s testimony or determined that he was a commissioned employee in August 2022, it could conclude that he was entitled to compensation connected to the Pepperidge Farm account. Summary judgment therefore was denied on that claim.

That ruling does not establish discrimination. A contractual or statutory dispute over compensation does not become evidence of age bias merely because the employee may ultimately prove that money was owed. The distinction must be maintained if the criticism of the decision is going to be credible.

But the Labor Law ruling does demonstrate something important about the factual record: WestRock’s account of Krimsky’s compensation status was not objectively beyond dispute. A jury could reject it.

That matters when the same compensation dispute is evaluated as part of the discrimination record. The fact that management asserted a particular belief does not automatically establish that the belief was complete, accurate, or uninfluenced by other considerations. Nor does proof that an employer held some legitimate view necessarily establish that discrimination played no role in the resulting decision. The broader State and City inquiry should therefore have examined whether the disputed compensation history, Parker’s alleged statement, the timing of the compensation change, and the subsequent employment actions could collectively permit a discriminatory inference.

This is where the difference between federal pretext and New York mixed-motive analysis becomes practical rather than theoretical. Krimsky did not have to prove that every legitimate business consideration was fabricated in order for the State or City law to recognize discriminatory motivation. If a jury could reasonably find that WestRock had legitimate compensation or performance concerns and also find that age influenced how those concerns were acted upon, mixed-motive liability remains conceptually possible.

The court itself stated the applicable test: discrimination must have “played no role” before summary judgment may be entered under the broader New York standard. Once that formulation is accepted, the existence of a legitimate reason cannot itself complete the analysis. The court must still determine whether the evidence forecloses any reasonable inference that an unlawful motive operated alongside the legitimate one.

That is the inquiry that becomes difficult to see once the decision is organized principally through the federal framework established in footnote 3.

The Larger Problem Is Not Judicial Motive. It Is the Persistence of Superseded Doctrine.

This is where criticism of the legal system must remain precise.

Nothing in Krimsky supports an accusation that the district court intentionally disregarded New York law or set out to deprive a discrimination plaintiff of a jury trial. That would be unsupported and unnecessary. The more serious problem is institutional because it does not depend on anyone acting improperly.

Employment-discrimination doctrine has developed around McDonnell Douglas for more than fifty years. The framework is embedded in federal judicial decisions, motion practice, legal research databases, treatises, form briefs, and the professional instincts of employment lawyers and judges. For decades, the NYSHRL itself was routinely described as coextensive with federal law. Those cases remain published, searchable, and repeatedly cited even after the Legislature materially changed the statute. The NYCHRL presents an even more striking example because New York City has spent more than two decades attempting to prevent precisely that doctrinal migration, yet federalized formulations continue to reappear.

That is the institutional problem exposed by footnote 3.

A proposition enters the case because it is familiar. An older decision supplies the citation. The proposition is repeated without examining whether the Legislature subsequently changed the legal premise on which the older decision rested. The new opinion then becomes additional authority for the same proposition, and a superseded analytical assumption receives another generation of judicial life.

The danger is particularly acute in discrimination litigation because these mistakes do not merely affect the wording of an opinion after a jury has reached a verdict. They operate at the stages when courts decide whether a jury will ever hear the case. The governing framework determines what constitutes relevant circumstantial evidence, whether competing motives may coexist, how ambiguous statements are treated, whether an employer’s explanation is simply evidence or effectively dispositive, and whether factual disputes remain for trial.

That is the “dirty little secret” worth confronting. It is not conspiracy or intentional judicial hostility. It is the much less dramatic but more persistent reality that familiar doctrine can continue to govern long after the legislature has changed the law from which that doctrine developed. Because the process looks ordinary—familiar cases, familiar burdens, familiar terminology—the substantive narrowing can occur almost invisibly.

For litigants, however, the consequence is anything but invisible. A viable claim can be lost because the wrong analytical framework determines what the evidence is permitted to mean.

Litigants Cannot Treat the Choice of Standard as Boilerplate

The practical lesson from Krimsky is that counsel asserting NYSHRL and NYCHRL claims cannot afford to treat the governing standards as several pages of introductory boilerplate before turning to the “real” factual argument. In these cases, the standard is part of the factual argument because it determines how the court evaluates motive, ambiguity, mixed evidence, and competing explanations.

Where the challenged conduct spans the 2019 amendments, counsel should separate the acts by date and identify which statutory regime governs each one. Where NYCHRL claims are pleaded, counsel should resist any formulation suggesting that the City claim simply rises and falls with the federal claim. Where an employer relies on a legitimate business explanation, counsel should make clear that the existence of that explanation does not itself establish that discrimination played no role. And where the evidence is circumstantial—as it usually is—the opposition should explain why each item of evidence must be considered as part of the entire record rather than dismissed individually because no single fact conclusively proves discrimination.

The same care is necessary when defendants invoke older precedent. The question is not merely whether the cited case remains “good law” in the abstract. The relevant question is whether the particular proposition for which it is being cited survived the statutory amendments and subsequent appellate decisions. A case can remain perfectly valid while no longer supporting a proposition that depended upon an earlier version of the statute.

That point is particularly important with decisions saying that federal and State discrimination claims are analyzed identically. Those statements cannot simply be repeated after 2019 without asking which version of the NYSHRL was involved and what issue the earlier court actually decided. Likewise, NYCHRL claims should not be placed into a federal analysis first and then rescued with a sentence at the end stating that City law is “more liberal.” The independent construction has to shape the analysis from the beginning.

This is not a matter of asking courts to favor plaintiffs. It is asking courts to apply the law governing the claim before deciding whether the evidence satisfies it.

The Question Is Not Whether Krimsky Should Have Won. The Question Is Whether the Correct Law Determined Whether He Was Entitled to a Trial.

That distinction should remain at the center of any criticism of Krimsky.

Nothing in this discussion establishes that Marshall Krimsky ultimately would have prevailed before a jury. The record described in the opinion contained evidence favorable to WestRock, including performance criticisms, concerns about his use of company systems and technology, questions concerning new-business development, and disputes about professionalism. A jury could credit that evidence, reject Krimsky’s interpretation of Parker’s statement, accept WestRock’s explanation of the compensation arrangement, and return a defense verdict.

The NYSHRL and NYCHRL do not prohibit that result.

What they require is that the result be reached under the law New York actually enacted.

That is why footnote 3 matters so much. The problem does not end with an imprecise citation. The footnote establishes the framework through which the court subsequently decides what evidence is probative, what explanation is sufficient, what inference is reasonable, and what factual issue remains for a jury. The opinion later acknowledges that State and City law require only a motivating factor and that summary judgment is appropriate where discrimination “played no role,” but those principles cannot perform their intended function if the evidence has already been filtered through a narrower federalized analysis.

The chronology makes the concern more difficult to dismiss. New York City had been demanding independent construction of the NYCHRL for nearly twenty-one years by the time Krimsky was decided and had legislatively reinforced that command because courts continued to narrow the statute. New York State had amended Executive Law § 300 seven years earlier to prevent federal civil-rights construction from controlling its own Human Rights Law. Appellate courts had explained the significance of those enactments well before September 2026.

The issue therefore is not whether a federal court failed to anticipate where New York law might eventually go.

New York had already gone there.

The more serious question is whether the modern NYSHRL and NYCHRL were permitted to operate as the independent remedial statutes New York created, or whether the older federal architecture remained controlling despite the legislative changes.

That question matters well beyond Krimsky. If courts continue to begin with the proposition that federal, State, and City claims share one governing framework and only later acknowledge that New York law is broader, litigants will continue to face the risk that the federal analysis has already decided the case before the State and City standards meaningfully enter it.

A discrimination claim should be dismissed when the evidence cannot satisfy the law governing that claim. Courts are obligated to do that.

But there is a profound difference between finding that a claim fails under the statute New York enacted and finding that the claim fails because an older federal framework narrowed what the evidence could establish before the New York standard was fully applied.

For litigants, that difference may determine whether a potentially viable civil-rights claim is adjudicated by a jury or disappears at summary judgment.

And that is precisely why this issue deserves far more attention than a footnote.

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