OGC Op. No. 06-11-06
The Office of General Counsel issued the following opinion on November 9, 2006, representing the position of the New York State Insurance Department.
Re: Discrimination Coverage
May the liability portion of an insurance policy covering the risks of a garage owner provide coverage for discrimination claims?
The liability portion of an insurance policy covering the risks of a garage owner may provide coverage for claims arising from unintentional acts of discrimination, such as employers vicarious liability and disparate impact claims.
An inquirer noted in his request for an opinion that an Office of General Counsel Opinion dated December 20, 2005 determined that a commercial umbrella policy may provide coverage for unintentional acts of discrimination, such as employers vicarious liability and disparate impact claims. He questioned whether it is permissible to include such coverage on the primary, underlying policy that provides the liability insurance for a garage owner.
The same analysis applied regarding coverage of discrimination claims under a commercial umbrella policy applies to a primary, underlying policy providing the liability insurance for a garage owner. Thus, as stated in the December 20, 2005 opinion:
Liability insurance for intentional wrongs is prohibited, in part, because deliberate misconduct lacks the element of fortuity required of insurance contracts. Indemnification of a wrongful act is also proscribed because it is against public policy. For these reasons, the Department has consistently disallowed intentional discrimination (disparate treatment) claims to be covered under liability insurance policies. The Department does, however, permit coverage to be provided for claims arising from unintentional discrimination: disparate impact claims and employers vicarious liability.
As also noted, Circular Letter No. 6 (1994) states in part:
[A]ctions and recoveries under the various and evolving civil rights laws have increasingly been rooted in discrimination claims based upon disparate impact, rather than disparate treatment. In such cases, the discriminatory result does not directly proceed from specific discriminatory acts against individuals; in fact, such acts are not an element of the wrong and need play no part in the facts alleged. Rather, such suits are normally grounded upon statistical or other numerical profiles that reflect disparities between or among groups sufficient to support a finding of discrimination.
The basis for allowing employers coverage in actions alleging vicarious liability arising from the discriminatory acts of their employees is identical ie., the lack of intentional conduct on the employers part. An employer may be held vicariously liable for the discriminatory act of an employee even though it: (1) played no active role in the commission of the act; (2) did nothing whatever to aid or encourage its commission; and (3) may have done all that it possibly could to prevent it. In all situations except those involving discrimination, the Department permits coverage for claims of vicarious liability regardless of whether the underlying wrong is intentional or not. Therefore, this determination merely conforms the Departments treatment of discrimination with its treatment of all other kinds of vicarious liability claims.
Moreover, the Insurance Department concludes that the strong public policy against discrimination of any kind is, in fact, furthered by permitting coverage of the kinds described. By bringing to employers attention practices that can potentially result in unlawful discrimination, insurers loss prevention programs and underwriting standards should discourage such practices. Any employer who does not diligently attempt to modify employment procedures accordingly may well be denied insurance coverage. When unlawful acts of discrimination occur nonetheless, coverage will help ensure just compensation for victims.
Thus, the liability portion of an insurance policy covering the risks of a garage owner may provide coverage for discrimination claims based on disparate impact (as opposed to disparate treatment) and for actions alleging vicarious liability arising from the discriminatory acts of employees of the insured, provided such acts are not conducted intentionally by the employer.
For further information you may contact Associate Attorney Sally Geisel at the New York City Office.