Academic journal article Fordham Urban Law Journal

A Return to Eyes on the Prize: Litigating under the Restored New York City Human Rights Law

Academic journal article Fordham Urban Law Journal

A Return to Eyes on the Prize: Litigating under the Restored New York City Human Rights Law

Article excerpt

"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. … 
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