Memo in Support of Bill that would Expand Access to Justice Under the NYS Human Rights Law

Peter Dellinger April 08, 2019

Memorandum of Support

Amending the Executive Law to Permit the Award of
Attorney Fees and Expert Witness Fees in Appropriate Cases
A3923 (Dinowitz)/S4129 (Biaggi)

We recommend you view the PDF here.

Empire Justice Center strongly supports Assembly Bill A3923/S4129 which would amend and expand the Human Rights Law, Executive Law § 290 et seq. to provide for the award of attorney fees to prevailing plaintiffs in all appropriate cases of discrimination. Empire Justice Center has represented hundreds of low-income workers in Upstate New York facing barriers to meaningful and productive employment caused by wage theft, dangerous working conditions, and employment discrimination. By providing for the award of attorney fees to prevailing plaintiffs for all forms of discrimination prohibited under the HRL, this proposed legislation will finally cure the underlying statutory weakness of the Human Rights Law and will help attain the promise of fairness and equal treatment in the workplace for millions of New Yorkers.

New York became the first state in the union to outlaw employment discrimination when Governor Thomas Dewey signed the “Law Against Discrimination” in 1945. This statute prohibited employment discrimination based on race, creed, color, and national origin and later became known as the New York Human Rights Law (HRL), Article 15, Executive Law § 296, et seq. Since 1945 the law has been periodically amended and now has a broad reach prohibiting many forms of pernicious discrimination. The current Human Rights Law prohibits employment discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, marital status or disability, and also prohibits these forms of discrimination in housing, education, credit, and access to public accommodations. HRL § 290. The statute contains a strong anti-retaliation provision, and now protects domestic violence victims, those persons with criminal or arrest records, and those with predisposing genetic characteristics from employment discrimination. In 2019, New York enacted the Gender Expression Non-Discrimination Act (GENDA), which added “gender identity” and “gender expression” as protected categories under the Human Rights Law.

For victims of discrimination, the New York Human Rights Law provides comprehensive monetary, injunctive, and declaratory remedies which include back pay, injunctive and declaratory relief and compensatory damages, compensation for mental anguish, and pre-judgment interest. Nevertheless, despite these available remedies and the broad breadth of coverage, for the last 75 years the New York Human Rights Law has remained a chronically weak and underutilized statutory rights enforcement vehicle. This weakness and under-utilization is caused by a fundamental statutory flaw: for those who seek justice under the HRL, there is no uniform provision for the award of attorney fees to a prevailing plaintiff.1 In contrast, the New York City Human Rights Law and a myriad of federal civil rights and labor protective statutes all protect civil, labor, and human rights by including an attorney fees-shifting provision within their statutory schemes, awarding fees to prevailing plaintiffs.

These fee shifting provisions effectively create and enhance New York City and federal civil and human rights enforcement by private attorney generals representing aggrieved victims of discrimination, who are paid by the perpetrators. After 75 years, this proposed legislation will finally give discrimination victims across the state access to private counsel, who in turn will act essentially as private attorneys general in the enforcement of the state Human Rights Law.

It is well established that “[t]he awarding of attorney’s fees in civil rights cases is a central component of a well-ordered civil rights regime.”2 The United States Senate Report on the federal Civil Rights Attorney’s Fees Awards Act of 1976 stated that numerous pieces of civil rights legislation “depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.”3 Noting that “[i]n many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer must have the opportunity to recover what it costs them to vindicate these rights in court.” Id. In this respect, those citizens and their lawyers are acting as private attorneys general.4

When comparing possible methods for enforcing civil rights statutes, legal and public policy scholars have identified the following factors favoring private enforcement mechanisms using fee shifting provisions as proposed here . If enacted, the amended Human Rights Law will help:

1. Multiply resources devoted to prosecuting enforcement actions. Allowing and encouraging private litigation can bring vastly more resources to bear on enforcement;
2. Shift the costs of regulation off of governmental budgets and onto the private sector;
3. Take advantage of private information to detect violations;
4. Encourage legal and policy innovation;
5. Emit a clear and consistent signal that violations will be prosecuted, providing insurance against the risk that a system of administrative implementation will be subverted;
6. Limit the need for direct and visible intervention by the bureaucracy in the economy and society; and
7. Facilitate participatory and democratic governance.

For these reasons, we strongly support the enactment of A.02475 expanding and amending the Human Rights Law, § 290(10).

This memorandum was prepared by:
Peter Dellinger, Senior Attorney

1 Unaccountably, although enacted in 1945 the Human Rights Law has only recently permitted the award of attorney fees for two forms of discrimination in successful lawsuits: housing discrimination and sex discrimination. In response to the federal housing regulation and oversight requirements, the HRL was amended in 1991 to permit the award of attorney’s fees in housing discrimination cases. Effective January 19, 2016, the HRL was amended to provide for an award of reasonable attorneys’ fees for claims of discrimination based on sex. Under this amendment, an employer is responsible for attorneys’ fees only if the employer has been found liable for having committed an unlawful discriminatory practice. The amendment also permits employers to obtain attorney’s fees, but only if the claim is frivolous or brought or continued in bad faith. N.Y. Human Rights Law § 296 (a); 13A N.Y. Prac, Employment Law in New York § 4:439.90 (2d ed.)

2 Alan Schoenfeld, Attorney’s Fees “R” Us: The Significant Public Purpose Doctrine Comes to State Court, 23 Yale L & Pol’y Rev 601 (2005).

3 Senate Report. No. 1011, 94th Cong., 2d Sess. 1976, at 2, 1976 U.S. Code Cong. & Admin. News 5908, 5910.

4 See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam) (“When a plaintiff brings an action under [Title II of the Civil Rights Act of 1964], he cannot recover damages. If he obtains an injunction, he does so not for himself but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority.

5 Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer, Private Enforcement, 17 Lewis & Clark L Rev 637, 662 (2013).