Testimony: NYC Council Committee on General Welfare regarding the Local Civil Rights Restoration Act

Testimony of Irum Taqi on behalf of the New York Civil Liberties Union before the New York City Council Committee on General Welfare regarding the Local Civil Rights Restoration Act, Int. 22. My name is Irum Taqi. I am Legislative Counsel at the New York Civil Liberties Union (“NYCLU”). The NYCLU is the New York affiliate of the American Civil Liberties Union. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. Central to this mission is our advocacy regarding the right to equal protection under the law as recognized under the Fourteenth Amendment of the federal Constitution and Article 1, Section 11 of the New York State Constitution. I present testimony today in support of Int. 22, intended to strengthen New York City’s Human Rights Law. On behalf of the NYCLU, I thank Council Member Bill de Blasio, Chair of the Committee on General Welfare, for convening this hearing. The NYCLU commends Council Member Gail Brewer for introducing this legislation, as well as those Council Members who are co-sponsors of the bill. This proposed local law sends a strong message that the Council is determined to preserve and strengthen the City’s Human Rights Law to protect New Yorkers against discrimination, but also recognizes that both entrenched patterns and individual incidents of discrimination remain serious problems in New York City. The city’s housing market and public schools are among the most segregated in the country. Fifty years after the Brown v. Board of Education decision condemning segregated schools as “inherently unequal,” public schools today remain racially unbalanced. Sixty percent of all black students in New York State, including those in New York City, attend schools that are at least 90 percent black, according to a recent study by the Civil Rights Project at Harvard University. Students at Mott Haven elementary school in the Bronx are over 99% black, “making them statistically indistinguishable from students in pre-1954 public schools whose racial segregation was enforced by Jim Crow laws.” More Latinos in New York State than in any other state go to schools that are 90 percent or more Latino. In the politically turbulent period since the attacks on the World Trade Center, there have been numerous reports of discrimination and bias directed at Arabs, Muslims and South Asians. These incidents offer a dramatic reminder of both the vulnerability of constitutional rights and our legal duty to remain vigilant in defense of those rights. The results of a survey of Muslim, Arab and South Asian communities in New York City by the City’s Commission on Human Rights reveals that 69% of respondents believe that they were the victim of discrimination or bias-related harassment since September 11, 2001. Survey respondents described incidents in which they were subjected to ethnic or religious slurs, or demeaning comments about their appearance, clothing or background by store clerks and teachers. Respondents also reported that they were fired or not hired based, in their view, on anti-Islamic, anti-Muslim or anti-South Asian attitudes among employers. The survey also includes reports of discrimination in housing that involved threats of eviction and refusal to rent apartments based on national origin or religious affiliation. Such acts and patterns of discrimination cannot be tolerated in a city that prides itself on its diversity and openness. Indeed, the Council has long recognized the need and given meaningful protection to civil rights in our local laws. In 1991 the Council passed far-reaching amendments to the City’s Human Rights Law in order to “put the city’s law at the forefront of human rights laws.” Subsequent amendments to the law further expanded its protections. The City’s Human Rights Law prohibits discrimination in employment, public accommodations and housing based on actual or perceived race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability and marital status. In addition, the law protects against discrimination in employment based on an individual’s arrest or conviction record and a person’s status as a victim of domestic violence, stalking or sex offenses. The City’s Human Rights Law provides greater protection against discrimination than state or federal law. For example, under state law, discrimination based on a person’s citizenship status is not prohibited, and there is no federal civil rights law that explicitly bans private workplace discrimination based on sexual orientation. Despite its expansive protections, however, two significant problems that the Council faced in 1991 continue to impede the full realization of the City’s Human Rights Law as a progressive model for victims of discrimination to vindicate their rights: the erosion of civil rights protections by state and federal courts and inadequate enforcement of the City’s Human Rights Law. The legislative history indicates that the Council’s overhaul of the City’s Human Rights Law in 1991 was a response in large part to federal and state court decisions that scaled back the existing protections of human rights laws. The Council did not want judges interpreting the city law to be bound by restrictive state and federal rulings. But federal and state court decisions have continued to erode existing civil rights protections in several areas, including employment and housing discrimination claims, and have construed the City’s Human Rights Law so narrowly and restrictively as to undermine the legislative intent. Int. 22 makes clear that the scope of the city law should not be unduly limited by restrictive interpretations of similar provisions under state or federal law. Int. 22 aims to restore specific civil rights protections that have been chipped away by federal and state courts in the areas of marital status discrimination, retaliation claims in the employment discrimination context, and recovery of attorneys’ fees. The bill also strengthens the enforcement provisions of the City’s Human Rights Law. Attorneys’ Fees in “Catalyst” Cases Int. 22 would ensure that an individual or group that succeeds in changing a discriminatory policy by bringing a complaint under the Human Rights Law would recover costs and attorney’s fees, even when the subject of the complaint voluntarily makes the change before a final ruling on the merits. If filing a complaint served as a “catalyst” to effect policy change or to stop some discriminatory action, then an individual or organization would be reimbursed for its efforts. The recovery of attorneys’ fees empowers individuals who cannot afford private counsel to redress violations of their civil rights, and it enables lawyers to take on complex, financially risky cases that often effect far-reaching policy change. On the federal level, certain statutes entitle the “prevailing party” in civil rights litigation to be reimbursed for costs and attorney's fees. The recovery of attorney's fees under these "fee-shifting" statutes is a cornerstone of enforcement of federal civil rights laws because it enables individuals to act not just for themselves, but as "private attorney generals" to vindicate federal policy. For decades federal courts have interpreted fee-shifting statutes to allow recovery of attorney’s fees where the plaintiff’s lawsuit acts as a “catalyst” for the defendant providing the relief sought before a formal decision by the court or settlement agreement. Consider, for example, the following scenario:

A state’s fire safety regulations requires that people living in nursing homes are able to evacuate the premises without assistance in the event of a fire or other emergency. The state’s fire marshal orders a nursing home to close down because its elderly and disabled residents are unable to comply with the regulations. The owner of the nursing home sues the state under the Americans with Disabilities Act and the Fair Housing Amendments on behalf of its residents, alleging that these rules discriminate against disabled nursing home residents. More than two years later, after extensive discovery and preparation for trial, the state unilaterally repeals the fire safety rules. Counsel for the nursing home owner applies for attorney’s fees under the applicable provisions of the federal civil rights statutes on the basis of the catalyst theory, because the lawsuit had been the catalyst for the state to repeal the regulations at issue in the case. What happens?

Overturning decades of precedent and departing from the state of the law in almost every judicial circuit, the Supreme Court in this case rejected the so-called “catalyst theory” that allowed recovery of attorneys’ fees and costs under the federal statutes. The Court held that a “prevailing party” is one who had been awarded relief by a court with a judgment on the merits or a court-ordered consent decree, not one that brought about a unilateral change in the defendant's conduct thereby obtaining the relief sought by bringing the lawsuit. The Court’s ruling undermines the purpose of the civil rights laws which serve to compensate individuals harmed by discrimination and to discourage discrimination in the first place. Without the possibility of a fee award after a successful suit, individuals seeking to enforce fee-shifting statutes, like the Civil Rights Act, the Americans with Disabilities Act and the Fair Housing Amendments Act, will be unlikely to retain counsel. As a result, these rights will exist in name only. Additionally, in rejecting the catalyst theory, the Supreme Court’s decision serves to inhibit the ability of civil rights attorneys and public interest groups to bring law reform cases. It encourages defendants to protract the litigation and to persist in wrongful conduct for as long as possible in order to exhaust the plaintiff’s resources and then, adopt the change at the eleventh hour to avoid payment of attorney’s fees. Int. 22 makes explicit that all complainants may be awarded attorneys’ fees in “catalyst” cases, rejecting the Supreme Court’s restrictive decision and serving to strengthen the enforcement of the City’s Human Rights Law. Marital Status The New York Court of Appeals has interpreted “marital status” in a manner that serves to differentiate between married and unmarried couples, precisely what the City’s Human Rights Law prohibits. If a landlord evicts an unmarried couple based on a lease that limits occupancy to a tenant and the tenant’s immediate family, such an action, in the eyes of the court, is not considered marital status discrimination. The fact that the additional tenant is someone with whom the leaseholder has a loving relationship but lacks status as an immediate family member solely in a formal sense “is simply irrelevant” in the eyes of the Court. Only if the landlord refused to rent to all unmarried people, regardless of whether they are single or lifelong partners, would the Court find that the landlord discriminated based on marital status. The Court has interpreted “marital status” to mean the relation an individual has to the marital state, rather than to a particular marital partner. The proposed amendment makes clear that the City law on marital status discrimination includes discrimination based on the martial status of two people in relation to each other. Retaliation Courts’ have also undermined civil rights protections in employment discrimination cases that involve retaliatory conduct where, for example, an employee complains about her employer’s discriminatory practice and then suffers an adverse employment action as a result. Instead of first determining whether retaliation occurred, and then determining the degree of harm the victim suffered, courts have conflated the issues of liability and damages, thereby serving to prohibit only serious acts of retaliation. Under the City’s Human Rights Law, however, any retaliation is prohibited. Int. 22 clarifies the intent of the anti-retaliation provisions of the Human Rights Law by explicitly stating that the degree of harm is only an appropriate consideration in determining the appropriate level of damages, not in establishing liability in retaliation cases. Conclusion In the face of court decisions that serve to deprive civil rights laws of their intended scope and effect, Int. 22 attempts to correct judicial rulings that undermine the intent of the City’s Human Rights Law and strengthen its enforcement. The words of Mayor Dinkins in signing the comprehensive amendments to the City’s Human Rights Law in 1991 remain true today: “There is still much work to be done to help us achieve the goal of a truly open city. We have learned over the years that change will not come without resistance; that the struggle for civil rights must constantly be renewed; and that the struggle for the rights of one group is indivisible from the struggle for rights of all other groups. The new human rights bill gives us the legal tools we need today to continue the fight.”