A return to eyes on the prize: litigating under the restored New York City Human Rights Law.

• Author: Gurian, Craig

"The Legislature, by enacting an amendment of a statute changing the language thereof, is deemed to have intended a material change in the law."

--New York Statutes, Construction of Amendments (1)

"The courts in construing a statute should consider the mischief sought to be remedied by the new legislation, and they should construe the act in question so as to suppress the evil and advance the remedy."

--New York Statutes, Construction of Amendments (2)

INTRODUCTION

Fifteen years ago, in 1991, New York City enacted comprehensive reforms to its local Human Rights Law (3) in order to fight a civil rights counter-revolution that was already restricting civil rights protections on the national level. (4) These reforms never achieved their potential, a failure due, in significant measure, to the unwillingness of judges to engage in an independent analysis of what interpretation of the City Human Rights Law would best effectuate the purposes of that law. (5) This unwillingness has not been an isolated phenomenon. On the contrary, virtually every judge who has presided over a City Human Rights Law matter has simply asserted that the City Human Rights Law was nothing more than a carbon copy of its federal and state counterparts. (6)

The recent enactment of the Local Civil Rights Restoration Act ("Restoration Act") (7) reflects the New York City Council's concern that the City Human Rights Law "has been construed too narrowly." (8) The law explicitly rejects the "carbon copy" theory: "In particular, through passage of this local law, the Council seeks to underscore that the provisions of New York City's Human Rights Law are to be construed independently from similar or identical provisions of New York state or federal statutes." (9)

The Restoration Act proceeds along two basic tracks. One track consists of a series of amendments to particular sections of the law. These amendments are significant in and of themselves and in terms of understanding the direction in which the Council wishes to see the law proceed. These amendments expand retaliation protection, raise the maximum civil penalties that may be awarded in proceedings brought administratively, (10) protect domestic partners against all forms of discrimination proscribed by the law, (11) require administrative investigations to be thorough, and restore the availability of attorney's fees in catalyst cases. I defer exploration of these amendments until Part II of this article only because it is the Restoration Act's other track that is intended to be transformative.

That second track is designed to eliminate the mechanism by which judges have failed to give the local law the expansive interpretation that the Council has intended. The Act states that provisions of state and federal civil rights statutes should be viewed "as a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise." (12) This ought not be a revolutionary proposition. That idea, after all, has found explicit statutory expression for forty years. (13) Nevertheless, the reality is that there has been very little independent development of the local law, even in circumstances where the language of a specific City Human Rights Law provision varies from that of its federal or state counterpart. (14)

The Act also amends section 8-130, the construction provision of the City's Human Rights Law, something the 1991 amendments had not done. In so doing, the Restoration Act takes direct aim at the premises and practices that have underlain interpretations of the statute. The construction provision--which is an operative provision as much as any other section of the law--is revised as follows (additions italicized; deletions bracketed):

The provisions of this [chapter] title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed. (15) Assertions that the purposes of the City Human Rights Law are no broader than those other civil rights laws are simply not tenable in the face of this amendment. Likewise, the practice of robotically importing interpretations of federal and state civil rights statutes is inconsistent with the demand that liberal construction analysis must be performed without the result of that analysis being restricted or supplanted by the fact that federal and New York state civil rights laws have reached a result less friendly to victims of discrimination.

There are three crucial consequences of the Restoration Act's declaration of independence. First, there will be no warrant to ratchet down the protections of the City Human Rights Law in the likely event that federal and state civil rights protections are constricted further. (16) Indeed, the legislative history of the Restoration Act makes clear that the Council thought that federal and state civil rights laws had, by 1991, already been narrowed too far.

Second, areas of the law that have been treated as settled under City Human Rights Law, because they are settled for purposes of the counterpart statutes, will now be reopened for argument and analysis. This result follows directly from the Restoration Act's intention that decisions that have failed to construe City Human Rights Law provisions independently and robustly are not to be treated as controlling, and may only be afforded persuasive weight in limited circumstances. (17) As such, advocates will be able to argue afresh (or for the first time) a wide range of issues under the City's Human Rights Law, including the parameters of actionable sexual harassment, the vitality of protection against discrimination on the basis of marital status, the availability of a remedy for those persons with disabilities who need what the Second Circuit has characterized as "economic accommodations," and the appropriate scope of damages.

Third--and this consequence is, unfortunately, of more moment than might at first be apparent--the Restoration Act's removal of the crutch of assumed equivalence will persuade more judges to take a look at the actual language of specific provisions of the City's Human Rights Law. Doing so will cause them to see more differences with federal and state law--including differences in the areas of individual liability, vicarious liability, punitive damages, availability of compensatory damages in mixed motive cases, the nature of burden shifting in disparate impact cases, the scope of "public accommodations," and the obligation of a housing provider to make and pay for reasonable modifications--than they have previously taken the time to recognize.

It turns out--as the legislative history of the Restoration Act demonstrates--that the City Council had all three consequences unmistakably in view when passing the bill. (18) Will judges, consistent with the principles of statutory construction cited at the head of this article, be prepared to recognize that the City Council "intended a material change in the law," even where the changes are more far-reaching than they themselves would have enacted? Will they consider the "mischief to be remedied by the new legislation," even if they personally believe that the remedy is actually the mischief? Will they "construe the act in question so as to suppress the evil and advance the remedy," even if their own views of what discrimination law should be are aptly summarized by the motto: "defendants are already too burdened"? No legislation ever devised has provided a one hundred percent guarantee against judicial lawlessness, and so an article written in the immediate aftermath of the passage of the Restoration Act cannot set forth the answers to these questions with certainty.

Some things are clear, however. Any judge who takes seriously the principle that a court must honor the will of the legislature now faces a new reality and an important challenge. The need today for the development of the provisions of the City Human Rights Law by the process of judicial decision-making is not unlike the need for the development of the provisions of Title VII by the process of judicial decision-making which followed the passage of the Civil Rights Act of 1964. (19) Any civil rights advocate who is dispirited with national developments can seek to take advantage of the opportunities for the expansion of civil rights protections offered by the Restoration Act: (1) directly in New York City, by embarking on litigation that has been effectively foreclosed elsewhere; or (2) in other states and municipalities where there is the political will to insist that anti-discrimination laws be interpreted robustly, by seeking to pass similar legislation to make real the protections of civil rights law.

President Lincoln said--140 years ago--"let us strive on to finish the work we are in." (20) That task is still not completed; it is time that we got back to work.

PART I: BROAD, ROBUST, AND INDEPENDENT INTERPRETATION

1. Sources for Construction

   To understand the intent and consequences of the Restoration Act, one begins, of course, with the text of the statute itself, (21) but one must also consider the Act's legislative history. One key source was the report submitted to the full Council by the Committee on General Welfare, the committee from which the Restoration Act emerged. (22)

   Another key source was statements made when the full Council considered and passed the bill at its meeting of September 15, 2005. At that meeting, Council Member Annabel Palma, a member of the Committee on General Welfare, brought the attention of her colleagues to the intent and consequences of the legislation:

   Insisting that our local law be interpreted broadly and independently will safeguard New Yorkers at a time when federal and state civil rights protections are in jeopardy...