It Is Time To Enforce The Law:
A Report on Fulfilling the Promise of the New York City Human Rights Law
Committee on Civil Rights
Association of the Bar of the City of New York
The existence both of individual instances of discrimination in housing, employment, and public accommodations, and of entrenched patterns of such discrimination, remain major problems in New York City and its surrounding metropolitan area. Data released this year, for example, demonstrate that New York and its environs have one of the highest levels of housing segregation in the country. Nationally, a glass ceiling on the advancement of women remains firmly in place. A survey of Fortune 500 companies last year found that the leadership pipeline of line officers (i.e., those positions with profit-and-loss or direct client responsibility) consisted overwhelmingly of men. Only 7.3 percent of those positions were held by women.
Looking to see why more progress has not been made, the Committee has embarked on an effort to examine the discrimination-fighting efforts of the many enforcement agencies that have authority to prevent and remedy discrimination in New York City. This report focuses on the efforts of the Citys Commission on Human Rights and its Law Department, the two agencies vested by the Citys Human Rights Law with authority in this area.
The Committee has found that neither the Commission nor the Law Department has adequately performed its job of preventing and remedying discrimination. A variety of reasons are detailed in the pages that follow, including the crippling of the Commission by budget cuts that leave it today with only 24% of the City-funded staff that it had ten years ago. One lesson stands out: it is impossible to prevent and remedy discrimination effectively unless the tools employed in the effort include a sustained commitment to confront discrimination as a law enforcement problem as serious as any other. This is not to suggest that educational and other efforts to modify discriminatory attitudes are unimportant. Nor is this to suggest that efforts to mediate disputes cannot be useful. To the contrary, both education and mediation can help, respectively, to prevent and resolve instances of discrimination. Nevertheless, a credible threat that the law is going to be enforced is essential to creating a deterrent that actually contributes to modifying behavior.
Understanding the need to create a deterrent is no different from what is expected in other areas of law enforcement. No one, for example, would assert that the reductions in quality-of-life offenses that have been achieved in the last several years could have been achieved by exhortation alone. No one would assert that entrenched patterns of illegal behavior could be exposed and resolved merely by relying on individuals deciding to step forward. Certainly the City did not do so in reforming the trash hauling or concrete industries, or the Citys fish markets. Unless discrimination is recognized as especially harmful to the Citys social fabric, and as a major limitation on the quality of life of its victims, a double-standard will endure: serious attention and resources given to deploy enforcement solutions to most law and order matters; scant attention or resources given to deploy enforcement solutions to violations of discrimination law.
The Committee realizes that the Citys resources are stretched very thin in the aftermath of September 11th. Nevertheless, a City where discrimination is tolerated is a City that can never be truly united. The need for vigorous law enforcement in the anti-discrimination field can be achieved with a relatively modest infusion of resources (measured in the tens of millions over four years, not the tens of billions as with other priorities). Whether discrimination arises out of anger over the events of September 11th, or reflects other, longstanding strains of bigotry, the City must see to it that the fight against discrimination is waged effectively.
II. New York City Commission on Human Rights
A. Role of the Agency
The New York City Commission on Human Rights is given the power to eliminate and prevent discrimination from playing any role in actions relating to employment, public accommodations, and housing and other real estate... Administrative Code of the City of New York (Admin. Code) §8-101. In 1991, comprehensive amendments were passed to strengthen the law. Local Law 39 of 1991. These amendments included a variety of provisions stronger than those that were contained (or are even now contained) in federal law. Among these are the scope of reasonable accommodation and other disability protections; the scope of vicarious liability for acts of employees and agents; the circumstances under which punitive damages are imposed; the imposition of individual liability for ones own discriminatory acts; the allocation of burdens in disparate impact cases; the scope of public accommodations coverage; and a limitation on housing units excluded from coverage under the statute.
Importantly, there were also a series of changes that represented a reconceptualization of the agency from one which still had roots in the voluntarist efforts made in the 1950s and early 1960s, to one that was a modern law enforcement agency. This new view recognized that: (a) discrimination had become more subtle; (b) the agency could not merely offer a carrot to discriminators, but needed to wield a stick; and (c) handling discrimination cases was no longer a matter of bringing together two contesting individuals, but rather a complex field of litigation with an experienced bar dedicated to defending those accused of discrimination.
The shift to a serious law enforcement focus was made plain in the legislative history of the 1991 amendments:
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 be constantly renewed; and that the struggle for the rights of one group is indivisible from the struggle for the rights of all other groups. The new human rights bill gives us the legal tools we need today to continue the fight. Im counting on the Commission and the Law Department to use these tools to make sure that meritorious claims of discrimination are promptly and vigorously prosecuted.
B. Findings and Observations
The Committee had the opportunity to meet with the Commissions leadership, review publically available City budget and management reports, and to analyze data provided to the Committee by the Commission pursuant to a Freedom of Information Law request. This data included all cases in Fiscal Year 2000 (FY00) which were disposed of by no probable cause determination, administrative closure, withdrawal, or withdrawal with benefits. It also included all cases in FY98-FY00 where a probable cause determination was made, where a referral to hearing was made, where a decision was rendered by the commission, or where a conciliation agreement was entered into. Drawing on these activities, the Committee has determined the following.
1. The Commission is underfunded and understaffed. The Commission, like other anti-discrimination agencies, has never been adequately funded, but the problem has grown much more acute over the last several years. In FY91, there were 152 City-funded employees agency-wide. That number was reduced to 142 in FY92, and to 130 in FY93. By FY00, the number of City-funded employees budgeted had been slashed to 37, and was slated to decrease to 36 this year (even before the announcement of the Mayors recently-imposed budget cuts for almost all City agencies). In percentage terms, then, the agency-wide cut in City-funded employees from FY91 to FY01 has so far been 76%. The impact on enforcement potential has been predictably disastrous: at the end of June, 2001, the Commissions Law Enforcement Bureau was down to seven investigators and four staff attorneys actually on staff. Caseload has risen from 3,165 cases open as of July 1, 1999; 3500 open as of July 1, 2000; and 3,925 open as of July 1, 2001. At this rate of increase, the Commission would have 5,445 cases open by July 1, 2005, more than 10 times the number of investigations it completed this last fiscal year. All this with the need for initiatives against systemic discrimination not even accounted for. It is clear that, at this level of funding, a comprehensive effort to prevent and remedy discrimination is altogether impossible.
2. Most of the Commissions current activity does not involve penalizing discriminators and compensating victims of discrimination. In analyzing data provided by the Commission in response to a Freedom of Information Law request, the Committee counted a total of 562 cases as having been closed in FY00. 85 of these represented cases where the complainant withdrew the complaint without receiving any benefit, 15.1% of the total. An additional 122 cases were closed not because of any investigative finding, but rather because the agency could no longer locate the complainant. These failures to locate closures represented 21.7% of all case closures during FY00. Another 78 cases were closed for other reasons of administrative convenience (including closures made at a complainants request, closures for failure of a complainant to cooperate, and cases where further prosecution was deemed not to be in the public interest). This group represented another 13.9% of cases closed. Thus, taken together, withdrawals without benefits, failures to locate, and other administrative convenience dismissals represented just over half 50.7% of all cases closed in FY00.
In addition to the foregoing cases, another 170 were closed with a finding of no probable cause (30.2%). Assuming for the sake of argument that the cases were ones where sufficient evidence did not in fact exist to justify a finding of probable cause, it becomes clear that the overwhelming portion of the Commissions law enforcement effort does not focus on cases where discrimination has actually occurred (i.e., its activity is not high yield). Indeed, for every 10 no probable cause determinations, the Commissions current caseload yields only approximately one probable cause determination.
3. The Commission does not have a strategy to prevent and eliminate discrimination.
a. Identifying the scope of the problem. Fundamental to the development of a strategy to fight a problem is the gathering of information sufficient to determine its scope. The Commission is forthright in stating it has not done so; indeed, the Commission characterizes this as an imponderable. The Commission relies only on the number of complaints that have been filed with it to measure the scope of discrimination, and has no plans to develop other measurement tools. The inadequacies of this approach should be evident. The number of filings relates not simply to an absolute level of discrimination existing in the City, but is shaped by how many people are aware of their rights, how many people are aware of the existence of the Commission as a forum, and how people view the efficacy of the Commission as a forum. Each of these factors can be influenced by the Commission.
Perhaps most importantly, it is an error to believe that an examination of formal complaints of discrimination by individuals alone could ever provide a full picture of the scope of the problem. Some occurrences of discrimination can only be ferreted out were the Commission to utilize its authority to initiate undercover investigations on its own. For example, when an African-American New Yorker goes to a real estate broker, that individual has no way of himself knowing whether the broker has steered him away from available apartments in highly white areas, and towards available apartments in areas that are predominantly African-American. By contrast, a testing program, in which two investigators or testers who are similarly situated except for race are sent to the broker to seek comparable rentals, would allow the Commission to determine whether there were race-based disparities in terms of which apartments the broker was showing to which tester. Likewise, an individual might feel it futile or even dangerous to seek an apartment in a highly segregated neighborhood, but proactive investigation and prosecution of exclusionary practices would make clear both to discriminators and to those discriminated against that such practices were no longer being tolerated.
b. Combating the problem. In terms of preventing and remedying discrimination, any serious anti-crime effort must create a deterrent. For a deterrent to be effective, a law enforcement agency must create a reasonable risk to a potential violator that its activities will be detected. It must then make clear that those whose unlawful activities are detected will be prosecuted quickly, and will be forced to pay a heavy price. Recognizing limitations on resources, any law enforcement agency must create incentives for targets of prosecution to resolve cases quickly and fairly. The only way to create such incentives is for there to be increasingly more dire consequences for the failure of a discriminator to do so. None of these elements is in place.
4. The Commissions mistakenly believes that mediation can be an agency focus independent of litigation. The Commission frankly states that its focus is on mediation, not litigation. The idea that mediation can function properly on a stand-alone basis is a strategy that is contrary to all experience in litigation generally and prosecution specifically. As all civil litigators know well, a party thinks of the potential costs and benefits of settling a case in relation to the potential costs of and benefits of not settling a case. If there are no costs to failing to settle, it is unlikely that the party will put a fair and reasonable settlement proposal on the table, and is especially unlikely that the party will put such a settlement proposal on the table early in the process. No prosecutor would expect to achieve high levels of plea bargains let alone plea bargains at an early stage if the system were not designed to place the defendant at increasing risk the longer that defendant delayed agreeing to terms. Litigation and mediation must therefore be seen as intimately interrelated. A focus on litigation does not detract from mediation, but rather enhances the effectiveness of mediation. In turn, effective mediations resolve individual problems, create a deterrent (if publicized), and free up resources to litigate the remaining cases forcefully.
5. The risk of a discriminators conduct being detected is minimal, especially because the Commission only engages in the most limited effort to initiate investigations on its own. There are two ways that discriminatory conduct can be detected: individual complainants can bring specific instances to the Commissions attention, and the Commission can seek to initiate investigations and prosecutions on its own. As discussed above (see pages 7-8), the Commissions focus on individual matters has been low yield for actual instances of discrimination. In contrast, efforts initiated by a law enforcement agency itself have a much greater chance of having an impact on discrimination, both because the agency can target a particular problem, identify potential wrongdoers, and use tools (census data, testing, etc.) not available to individual complainants.
The 1991 amendments to the Citys Human Rights Law were very much concerned about dealing with patterns of discrimination. The amendments confirmed the Commissions authority to initiate investigations of pattern and practice cases, Admin. Code §8-105(4)(b), and gave the Commission new authority to require recordkeeping by subjects of such investigations, Admin. Code §8-105(6). The amendments also noted that new authority being granted to the Citys Law Department to fight systemic discrimination (see discussion at pages 40-41, infra) was designed to supplement the Commissions efforts in this regard. Admin. Code §8-401.
The Commission does not disagree with the premise that agency-initiated complaints can be effective, but cites lack of staffing as the reason for failure to engage in this type of activity except in the most limited way. Consideration needs to be given, however, to the proposition that agency-initiated complaints are at least as important in times of fiscal crisis as they are at other times. Most of the Commissions current effort (fully 80%) is expended on administrative closures, withdrawals without benefits, and no probable cause determinations. In contrast, a recent testing program of the Fair Housing Council of Greater Washington which was checking for the existence of race discrimination in rental housing yielded discrimination in 51% of tests conducted in Maryland, and 56% of tests conducted in Virginia. In contrast to the generally more limited impact of an individually brought case, a single investigation into a pattern and practice of discrimination can provide relief to hundreds or thousands. Moreover, an agency can initiate matters requiring affirmative relief that would not be initiated by the private bar because the anticipated monetary damages involved in such a case are low.
6. The Commissions first-in, first-out system means that few if any cases will be prosecuted quickly. Except for the rare case, the Commission maintains a system of working on the oldest cases in its system. There are many drawbacks to this approach. Because of the perennial backlog of cases, this means that each new matter must go to the back of the line. By definition, significant waits are virtually guaranteed. For example, of the cases that were closed by no probable cause (NPC) determination in FY00, 53 (30.1% of the total) had been filed three years or more before they were closed. Only 11 cases that were closed by NPC determination in FY00 had been filed in FY00 (6.3% of the total).
Breaking the cycle of first-in, first out was something that had been contemplated by the 1991 amendments to the Citys Human Rights Law. A requirement of prompt completion of investigations was set forth for the first time, but only for cases to be filed on and after September 1, 1991. Admin. Code §8-109(g). The idea was to force the agency the concentrate its resources on newly arriving matters, so as to prevent those new matters from becoming old.
The importance of looking at cases quickly cannot be overstated, and was one of the reasons that the 1991 amendments imposed a new requirement that respondents submit verified answers to complaints within 30 days. Admin. Code 8-111(a). For the person who has been discriminated against, justice delayed is in fact justice denied. Imagine the uproar if a victim of a crime or a fraud went to the police or the F.B.I. or the S.E.C. and was told, Perhaps well begin to get to work on this matter in a year or so. Without early case assessment, the Commission loses the ability to focus on getting quick results in the minority of filings in which it appears that the complainant has actually been discriminated against, and loses the opportunity to find some witnesses, let alone interview witnesses when memories are fresh. Critically, the Commission loses its ability to use its power to seek preliminary injunctive relief. The granting of expanded powers in this area was another innovation of the 1991 amendments authority was given to seek preliminary relief in employment and public accommodations cases in addition to the preexisting authority to do so in housing cases, Admin. Code §8-122 but the Commission has not used this power. Finally, the first-in, first-out approach dramatically reduces the risk to each new respondent that any action will be taken against it in a timely fashion, and encourages a sense amongst respondents that cooperation is not necessary.
7. Discriminators know that the Commission virtually never takes a case to trial. Most areas of law do not have a high percentage of cases that go to trial; anti-discrimination law is no exception. But, as in many areas of law, the willingness of the litigator to go to trial has a major impact on how that litigators adversary assesses the risks for her client. Without the threat that a case may be taken to trial, that adversary will be less likely to agree to a reasonable settlement, and, more generally, those covered by the provisions of the law are less likely to believe that violations carry serious consequences. For the four-year period from FY98 through FY01, the Commission rendered final decisions after trial in only five cases, well below one-half of one percent of all dispositions in that period. The last decision was published in January, 1999.
8. Discriminators are not forced to pay a heavy price. In court proceedings, it is routine for the monetary value of settlements in anti-discrimination cases to run to the tens-of-thousands of dollars, and it is not uncommon for the monetary value to run into the hundreds-of-thousands of dollars. By contrast, the monetary results achieved by the Commission for complainants are almost uniformly low.
Of 189 cases that were conciliated in FY98-00, the median value was $2,000. The mean value of the cases comprising the middle two quartiles (25-75 percentile range) was $2,172. A full 77% of the conciliated cases were settled for $5,000 or less, and 91% were settled for $10,000 or less. It is clear that respondents have understood the Commissions message that the agencys focus is on mediation, divorced from any threat of litigation.
Monetary relief for complainants, of course, is not the only measure of success. Other considerations include whether other penalties are imposed, whether affirmative, non-monetary relief is achieved, whether other methods of creating disincentives against delay are incorporated, and whether results are publicized to enhance deterrent effect and to encourage those who have been wronged to come forward.
9. The Commission has not been utilizing its authority to impose civil penalties against discriminators either to punish violators, deter future violations, or to encourage reasonable cooperation from respondents soon after a case is filed. Prior to the 1991 amendments, the City Human Rights Law had no provision for the imposition of civil penalties for cases that were brought administratively. The 1991 amendments permitted civil penalties of up to $50,000 to be imposed on a discriminator to vindicate the public interest, and up to $100,000 where the conduct was willful, wanton, or malicious. Administrative Code §8-126 (i.e., civil penalties up to $50,000 can be imposed even in the absence of any showing of willfulness, wantonness, or maliciousness). The existence of these penalties were seen as crucial to recognizing the seriousness of the harm that acts of discrimination impose on the City. Commenting on the situation that existed prior to the passage of the 1991 amendments, then-Mayor Dinkins pointed out the incongruity in that fact that, [Y]ou can be fined if you litter or double-park, but not if you discriminate. The hope was that, As cases begin to be prosecuted under the new law...the existence of these penalties will exert a strong deterrent effect against acts of bias.
A deterrent effect can be created both against the wrongdoer (who learns first hand that the cost of discriminating is higher than expected), and against potential discriminators (if the Commission were to publicize the imposition of civil penalties). Unfortunately, no such deterrent has been created. A review of all of the cases in which a settlement agreement was reached in the three year period encompassing FY98 through FY00 shows that of 189 conciliation agreements So Ordered by the Commission, none provided for the payment of civil penalties. In the three recent findings of discrimination after trial, no civil penalties were assessed in two cases, and a civil penalty of only $5,000 was assessed in the third case (see, supra, page 14, note 20).
10. Providing affirmative relief. The City Human Rights Law contemplates that a broad range of non-monetary relief is needed to remedy discrimination and prevent future acts of discrimination. An order of the Commission after trial: shall require the respondent to take such affirmative action as, in the judgement of the commission, will effectuate the purposes of this chapter.... Admin. Code §8-122(a), emphasis supplied. In some of its cases, the Commission does achieve affirmative relief in conciliation agreements. Most notably, out of a total of 189 conciliation agreements in a three-year period, 15 required a covered entity to make reasonable accommodation for a complainants disability. Pursuant to 13 conciliation agreements, respondents were obliged to undergo anti-discrimination training or to amend their policies to include or supplement anti-discrimination provisions. Provisions that provide relief beyond that available to a single complainant leverage the Commissions resources, promote the agencys overall mission, and need to be insisted upon wherever appropriate. Unfortunately, while there were 14 conciliation agreements that required a means by which to determine whether a specific provision of a conciliation agreements had been performed, there were none that required the respondent to have its compliance with the Citys Human Rights Law monitored on an ongoing basis.
11. There are no disincentives in place to foil attempts to delay the process. Though the Commission has extensive authority to deal with attempts to delay production of information, it tends not to utilize this authority (for example, it does not avail itself of its authority pursuant to Admin. Code §8-105(5)(a) to subpoena witnesses and documents). Perhaps most strikingly, the Commission does not utilize the model provided by the criminal justice system. In that context, defendants are routinely offered a better plea deal at the beginning of the process than would be available to them later in the process. The strategy is not very subtle, but is effective in gaining plea agreements at an early stage. The Commission, by contrast, will agree to settlements that impose non-disclosure agreements on complainants, regardless of whether the settlement is reached six months or six years after filing, and regardless of whether the settlement is reached before or after a probable cause determination has been made. Likewise, it never insists on the imposition of civil penalties, regardless of the posture of the case, or how much time has elapsed.
12. The Commission engages in only the most minimal publicity about its anti-discrimination efforts. In every area of law enforcement, the goal is to maximize deterrence, detection, and quick resolution. Deterrence can, of course, be achieved directly when a wrongdoer sees that there is a penalty for its conduct. More often, deterrence is achieved indirectly provided that potential wrongdoers learn that there is a risk of a penalty being imposed for certain proscribed conduct. Detection is maximized when victims of crime believe there is a reasonable probability that they will be vindicated if they bring their problem to the attention of law enforcement authorities. Quick resolution is maximized when accused wrongdoers understand that the entity that is prosecuting them has the wherewithal to follow through.
In all of these circumstances, publicity about results plays a crucial role. Publicity can not only serve as one aspect of direct deterrence, it is essential if potential wrongdoers are to believe that there is a risk of detection and punishment. More victims of discrimination will come forward if they learn that other victims have been vindicated. And the more that those accused of discrimination understand that there is agency follow through, the more likely it is that they will seek to settle early on.
The Commission engages in only limited publicity. Indeed, even in the most recent Mayors Management Report, the Highlights and Achievements section for Law Enforcement contains no mention of any substantive results.
13. The Commission has failed to bring cases that specifically illustrate the ways in which City law is more protective of civil rights than is state or federal law. Local Law 39 of 1991 was designed to put the citys law at the forefront of human rights laws. Among the many ways it did so were by including provisions that: hold individuals liable for their own discriminatory acts, Admin. Code §8-107(1)(a); hold employers strictly liable for employment discrimination committed by their managers and supervisors, Admin. Code §8-107(13)(b)(1), and extensively liable for co-worker harassment, Admin. Code §§8-107(13)(b)(2), 8-107(13)(b)(3); dramatically curtailed the previously-existing two-family owner-occupied exemption from the housing discrimination provisions, Admin. Code §8-107(5)(a)(4)(1); imposed an obligation to provide reasonable accommodation not only where a covered entity knows about a disability but also where the covered entity should know about the disability, Admin. Code §8-107(15)(a); and expanded public accommodations coverage to all providers to services to the public, including all schools, Admin. Code §8-102(9).
Among other amendments to the Citys Human Rights Law, disparate impact provisions stronger than those in federal law were put in place, Admin. Code §8-107(17); employment discrimination on the basis of marital status was prohibited, Admin. Code §8-107(1)(a); and discrimination on the basis of age in the context of public accommodations was newly prohibited, Admin. Code §8-107(4).
One would have expected extensive litigation by the Commission in each of these areas to develop a body of Commission caselaw in each of these areas. Doing so would have delineated the scope and reach of these provisions, and provided guidance to litigators and judges in the federal and state courts. In fact, no such caselaw has been developed.
14. The Commission does not rely sufficiently on trained legal staff. Unlike the State Division of Human Rights, the Commission has recognized (at least in principle) the fact that the investigatory process is a legal process, that it is not sensible to wait until non-attorney investigators have completed an investigation to bring legal analysis and resources to bear, and that determinations as to probable cause and no probable cause must be made by attorneys. As such, the Commission has a team system whereby attorneys and investigators are linked in a group headed by a supervising attorney.
Nevertheless, the Commission personnel on the front line of seeking and assessing information are Human Rights Specialists. Those with experience considered relevant need not have a college degree (although one is preferred); none is required to have more than a college degree, let alone any level of legal training. A recent vacancy for a Human Rights Specialist offered a starting salary of $35,582. These are the people who have primary responsibility for getting information from respondents represented by some of the most prominent law firms in the City. The mismatch is unmistakable.
The entire framework of anti-discrimination caselaw is built on the premises that discrimination is difficult to detect by direct evidence, that those accused will often put forward a pretextual reason for their conduct, and that the alleged victim of discrimination has access to less information about what happened and why than does the alleged discriminator. All of this means that the most sophisticated judgments must be brought to bear both in assembling and assessing a record prior to dismissing a case. It is certainly less expensive to have non-lawyers perform this task, but most would agree that, in general, the task would be better performed by an organization that had attorneys perform and/or direct these tasks, or at least had non-lawyers with extensive legal training performing these tasks under close attorney direction. Indeed, the Securities and Exchange Commission, which has its own complex area of law to enforce, relies only on attorneys and accountants to conduct investigations (assisted, of course, by paralegals).
15. The Commission does not have its own administrative law judges. Commission cases are currently heard before administrative law judges (ALJs) of the Citys Office of Administrative Trials and Hearings (OATH). While individual OATH judges may be experienced in handling complex discrimination cases, OATHs typical workload consists of summary proceedings. In FY01, of 2,239 cases received for adjudication, there were 1904 personnel cases, 100 license cases, five regulatory cases, 191 real estate and land-use cases, 27 contract cases, and 12 discrimination cases. In other words, the discrimination cases received accounted for approximately one-half of one percent of the total.
16. The scope of Commission investigations is generally limited, and is not governed by uniform standards. When an investigation concludes that there is no probable cause to credit the allegations of a complaint, a written determination to that effect is served on both complainant and respondent. In examining the FY00 no probable cause determinations, it was clear that many did not specify the investigative steps that were taken, and many others left it unclear as to whether a conclusion was compelled by evidence gathered by interviewing a witness, or by relying on a position statement submitted by a respondents lawyer.
Most of the investigations were quite limited in scope (most of the determinations themselves were no more than two pages long). It is certainly true that some claims of discrimination can easily be discounted by a review of evidence provided by the accused. The Committees review of the Commissions no probable cause determinations leaves no doubt that there is a substantial number of cases that fall within this category. There are, however, many cases of discrimination that are subtle, and which require a searching inquiry into the purported justification that has been advanced by a respondent to explain its conduct. The Commissions current leadership does not dispute the possibility that some cases could be complex. In general, however, bearing in mind the limited resources with which the agency is working, they believe that limited investigations, with limited discovery, are an appropriate match for the simple fact patterns they believe are presented in most of the matters filed with the agency.
Many law enforcement entities have an investigations manual that sets forth the basic procedures that should be followed. Among these might be the need to rely on evidence, not lawyer statements; the need to gather both written documentation and oral testimony in a form that could be utilized at trial if necessary; and the importance of interviewing witnesses separately to reduce the possibility of different witnesses tailoring their stories to conform to one another. The Commission does not maintain this type of investigations manual.
17. The Commission has neither sufficient data tracking in place nor the appropriate measures to gauge its performance. The Mayors Management Report publishes only the most minimal information regarding the Commissions enforcement efforts. Annual information is presented on total caseload at the beginning and end of the fiscal year, the number of complaints filed, the number of investigations completed, the number of cases closed by attorneys, and the numbers of cases referred to OATH ALJs. No data is provided regarding the qualitative results of cases, the number of probable cause determinations, the number of trials conducted, or the time it takes for investigations or prosecutions to be conducted. No analysis is done internally to assess the meaning of case filings and dispositions (i.e., looking at complainants protected class status, the context in which the discrimination was alleged to have occurred, and the result of the complaint).
As a new mayor takes on the responsibility of trying to create and maintain unity in New York City, paeans to the beauty of diversity will not be enough. A real commitment to equality requires both an understanding of the nature of the problem, a strategy to combat the problem, and a commitment to providing the resources necessary to wage the fight.
1. The new administration must promptly restore the calamitous budget cuts of the last 10 years. Reducing the Commission to the staffing levels that now exist was the quiet and polite equivalent of eliminating the agency altogether. A first step must be restoration to FY91 levels (152 City-funded employees), although doing so would not ultimately be sufficient because the agency was already underfunded 10 years ago. To put the funding issue in perspective, this is not a question of enormous new outlays of money of the scope of reconstruction, or tax abatements, other law enforcement expenditures, or virtually any other City service. It is a question of whether the new administration believes that anti-discrimination enforcement is worth raising annual expenditures to a level by the end of its first term of the equivalent of a nickel per week for each New Yorker. A nickel a week should not be too much.
2. The new administration must recognize that discrimination remains widespread, that it is a serious problem, and that it deserves a serious law enforcement response. It is never easy to acknowledge unpleasant realities, but the ugly truth is that discrimination remains an everyday experience that has a real impact on the quality of life of many New Yorkers whether its the knowledge of an African-American family that it is futile to even think of moving to the neighborhood which that family thinks has the best public school because that family knows the neighborhood remains exclusionary; whether its the frustration of a woman who wants to participate in the rebuilding of New York but finds that many of the construction trades remain closed to her; or whether its restrictions on a man with a disability who finds that shops, theaters, doctors offices and other public accommodations remain physically inaccessible to him. If a new administration accepts the existence of this problem, it must decide whether to continue to treat law and order as a major priority except for anti-discrimination laws, or whether to move to a system of one city, one standard, where all laws are vigorously enforced.
3. The new administration must recognize the importance of establishing a credible threat of litigation strategy. In most areas of law enforcement, the pendulum swings between an approach that is all stick, and one that is a balance of carrot-and-stick. Only in the discrimination area is the typical approach one of all carrot. This last approach has not had an impact on reducing or remedying discrimination, and there is no reason to expect that it will. People and organizations both before litigation and during litigation act not only on the basis of deeply held moral beliefs, but on a very practical assessment of what the likely consequences are of their conduct. If the anti-discrimination laws are to be more than pretty words, people must know that violations will in fact be promptly and vigorously prosecuted.
4. The new administration must recognize the need to have an ongoing systemic litigation program. As used here, the term systemic discrimination is intended to have two meanings. One is the identification and prosecution of covered entities who engage in a pattern-and-practice of discrimination. This might be the employer who still limits the hiring of gays and lesbians in highly visible positions out of an antiquated and biased view that such hiring would hurt its image. It might be the restauranteur who is happy to hire Latinos to work in the kitchen, but not to be waiters. The other meaning of systemic discrimination is that type of discrimination which suffuses an industry or a neighborhood. Thus, even though the owner of a two-family owner-occupied house is only discriminating in respect to one rental unit, the systemic nature of the problem is revealed by the fact that hundreds of his neighbors are doing the same thing.
Both types of these Commission-initiated investigations and prosecutions represent the best opportunity to detect and deter the greatest amount of discriminatory conduct. In contrast to the low yield found in connection with current individual filings, such Commission-initiated matters hold the prospect of being high yield in detecting and deterring and remedying systemic discrimination. Funding of the agency will obviously have to be increased before such efforts are staffed robustly. But even if it takes a period of years to achieve a fully adequate level of funding for the agency, there should be, given the potential rewards, a significant effort put into Commission-initiated investigations and prosecutions beginning immediately
There is, of course, an understandable concern about the plight of individual complainants, and whether a greater focus on systemic matters would hurt the agencys ability to handle those individual complaints. But the reality is that only major staffing and structural improvements can effect any meaningful change in that situation (see Recommendation 1, supra, pages 24-25, and Recommendation 5, infra, pages 28-31). In the context of a backlog of cases that now nears 4,000 and which, without additional funding, will be nearly 5,500 by mid-2005, it is clear that deploying some staff to Commission-initiated matters would have only a marginal impact on the scope of the backlog, but a real impact on whether the Commission begins to confront entrenched discrimination.
In developing a plan to identify and attack systemic discrimination, the new administration should proceed with the following principles in mind. First, it is important to maximize the pressure brought to bear against a pillar of entrenched discrimination so that the agencys enforcement efforts will begin to have an impact (both directly and in terms of secondary deterrent effect). Given resource limitations, this means that the agency will need to select only a few areas on which to focus. Second, the effect of a series of small cases bearing on the same problem should not be underestimated. These cases can be brought quickly, and can drive home the message that there is an ongoing enforcement effort that potential discriminators need to worry about. Third, it is crucial that all results of systemic enforcement be widely publicized: doing so creates a multiplier effect of deterrence beyond that achieved against the individual wrongdoer.
A first-stage goal for the Commission, consistent with the foregoing, should be to conduct enough testing of residential discrimination to be able to represent to the public that somewhere in the City testing is being conducted every day of the year.
Finally, the City should use its authority enlist the cooperation of other City agencies in helping to carry out the Commissions functions. Admin. Code §8-106. For example, all building owners receive regular mailings from the City. The Commission should arrange for a mailing to put owners on actual notice of their obligation to make reasonable accommodations for tenants with disabilities who they know or should know need such accommodation. Admin. Code §8-107(15)(a), and then should follow-up to see whether owners are meeting their obligations.
5. The new administration must make tough choices to break the cycle of endless backlog and delay. For even the most civil-rights-friendly administration, it will take time to get new staff hired and trained, and the Citys budget crisis is real and cannot be ignored. In the meantime, the Commissions case backlog will continue to grow substantially. The new administration must face the reality that, for hundreds and thousands of claimants (and a like number of those accused), their right to a prompt determination has already been lost. The only question is whether this process will be replicated endlessly by deploying too few staff to keep up with new cases. Pretending to be able to handle both old and new cases is not simply a disservice to a fixed number of individuals (all of whom retain the right to take the cause of action into court and be awarded attorneys fees if they prevail), but works to disable an agency from effectively performing any aspect of its mission.
Every consideration regarding the goals of preventing and remedying discrimination counsels a program of triage which would allow the Commission to focus its resources as quickly as possible on new matters that come in and on developing systemic investigations and prosecution, and which, once that focus is achieved, would require the Commission to concentrate on prompt and effective prosecutions of cases with merit. If covered entities know that there is a substantial chance that illegal activities will be detected and prosecuted to the fullest extent of the law, there will not only be a substantial increase in deterrence, but those cases with merit that are pursued by the Commission will likely settle more quickly and on better terms. In other words, litigation and mediation will be integrated: the threat of litigation encouraging more, better, and earlier settlements; the availability of mediation clearing the way for the Commission to get to trial on those cases where it is important to do so.
There needs first of all to be a period of 18 months during which the Commission would only investigate new individual filings where the agencys initial assessment of a complaint suggests that the case has extraordinary merit or that a particularly pressing public need would be served by proceeding with the case. During this period, all other newly-filed cases would be administratively closed as matters over which the Commission declines to exercise jurisdiction. To insure that a careful and serious initial assessment of each case in made, the task of intake and initial case review must be performed by attorneys highly experienced in anti-discrimination matters.
Any person whose case is closed on the basis of the Commission declining to exercise jurisdiction would preserve intact the right to commence an action in Court under the provisions of Chapter 5 of the Citys Human Rights Law. It is true that many such persons will not be able to secure an attorney and will shy away from commencing an action pro se; nevertheless, this proposed period of restricted investigations is the only realistic way to give the Commission a breather to hire and train necessary staff, begin its systemic investigation program, and begin the process of rapid response to highly meritorious matters needing emergency intervention.
For those older cases still pending six months after the passage of such legislation, complainants would be given the opportunity to present their case to an Administrative Law Judge on their own (unless the Commissions Enforcement Bureau chooses to intervene), without there having been a determination of probable cause. Complainants who do not want to proceed in this fashion would have to accept the reality that they would have to wait a very long time for the Commission to investigate, since virtually all staff would have been shifted to work on new matters, both individual and systemic.
After the 18-month emergency period, the Commission needs to be permitted a version of limited prosecutorial discretion on an ongoing basis. It is universally agreed that a substantial percentage of complaints filed with discrimination agencies do not have merit, yet doing even superficial investigations of these complaints has taken a tremendous portion of agency efforts. The Commission should be permitted to dismiss as a matter of agency discretion without prejudice to the complainants right to proceed in court up to 25% of each fiscal years filings as matters the Commission declines to investigate. These complainants would also preserve intact the right to commence an action in Court. Proceeding in this way would save valuable agency time, and permit more of the agencys focus to be on matters where it appears that discrimination has actually occurred. Capping the percentage of cases that can be dismissed in this way serves as protection against the risk that the declines to investigate closure could become a means by which the agency came to dismiss all but a handful of cases.
As with the 18-month emergency period, the declines to investigate procedure requires that intake and initial case assessment be done by attorneys highly experienced in assessing discrimination matters. For the ongoing declines to investigate procedure, this dismissal option should only be available for three months after filing, and only in those cases where respondents have answered and have not obstructed the Commissions requests for evidence. In this way, the possibility of a meritorious case being dismissed will be reduced, complainants will quickly know where they stand, and respondents will have an incentive to cooperate with the agency.
6. The new administration must realize that ongoing triage is essential. The goal of the agency must be to identify cases where discrimination can be prevented and remedied, and then to maximize the percentage of agency resources spent on those cases. Many complainants may have grievances including legitimate grievances that do not reflect the occurrence of discrimination. The Commission cannot be a forum for the resolution of these non-discrimination grievances; it needs to be a forum restricted to getting the most extensive and most effective relief against actual discriminators. As such, cases with merit must be prioritized at every stage of the Commission process.
7. The new administration must make certain that the Commission fully utilizes the power to seek preliminary injunctive relief. It is one thing (an important thing) to compensate victims of discrimination monetarily; it is at least as important to try to undo the effects of discriminatory acts. Thus, in cases where the evidence is strong and it is possible to secure an apartment or a job for an individual, or where it is important to have a selection process judicially or administratively supervised so that it is no longer tainted by discrimination, the Commission ought to be using its powers to seek injunctive relief to prevent respondents from doing things that would tend to render ineffectual relief that could be ordered by the Commission after a hearing... Admin. Code §8-122.
8. The new administration must develop an integrative approach to litigation and mediation focused on maximizing both deterrence and remedy. An integrative approach is the best way to leverage the Commissions resources, and requires several elements.
a. Focus on cases with merit. The first element of this approach must be a focus on those cases where the Commission believes discrimination has occurred; that is, those cases where Commission action can cause actual discrimination to be remedied, and future discrimination, both by the particular wrongdoer and by others, to be deterred.
b. Insist on relief that carries out the Commissions mission. The second element must be a demonstration to respondents and potential respondents that each case will be quickly, vigorously, and relentlessly litigated through trial unless terms truly consistent with the Commissions mission to effectuate the purposes of the Citys Human Rights Law are achieved. Thus, affirmative relief such as training and changes in a respondents policy must become the rule rather than the exception before the Commission agrees to settle a case. Ongoing monitoring of respondent practices should be incorporated into agreements where the Commission believes either that an egregious violation has occurred, or where there is a risk of a continued pattern of violations.
c. Utilize the power to impose civil penalties. The third element must be a willingness to insist on civil penalties in a substantial proportion of cases. This is consistent with the statutory intent. Civil penalties as set forth in the Citys Human Rights Law are not limited to cases where a respondent has acted willfully, wantonly, or maliciously; instead, penalties may be imposed for any discriminatory act to vindicate the public interest. Admin. Code §8-126(a).
d. Value discrimination damages appropriately. The fourth element must be a determination to break out of the pattern of almost uniformly low-dollar settlements. The Commission must examine results that victims of discrimination achieve in terms of compensatory damages in other forums, and not undervalue discrimination injuries. This is particularly important in view of the at least implicit pressure placed on complainants by a provision in the Citys Human Rights Law that permits complaints to be dismissed (with the right to commence an action in court) if a complainant is unwilling to accept a reasonable proposed conciliation agreement. Admin. Code §8-113(a)(4). As long as the Commission is handling a case where it is clear that the complaining witness has been discriminated against, it has the obligation to advocate for damages that in fact compensate for the injury that has been suffered.
e. Maximize deterrence and remedy by publicizing results. The fifth element must be extensive publicity about the results through trial or settlement that the Commission achieves in its cases. No enforcement agency is ever able to reach every case and potential case in its jurisdiction; its efforts are most effectively leveraged, and deterrence maximized, where people have a sense that wrongdoers are being caught and punished. Further deterrence will be achieved through the desire of covered entities to avoid engaging in conduct that, when detected, will be publicized. As an initial goal, the Commission should be able to report on such an achievement once each week.
f. Reward early settlements; discourage recalcitrance. The sixth element must be a recognition that it is important to the process to encourage respondents to cooperate and try to resolve matters quickly if possible. Though the provision in the statute dealing with refusal to accept reasonable conciliation agreements only sanctions complainants, Commission procedures could level the playing field. For example, the Commission could establish a policy of having a case-by-case determination of whether to insist on civil penalties if a case is being settled prior to a probable cause determination, but an absolute policy of insisting on civil penalties in cases settled after probable cause determinations. Likewise, while the Commission should never bind itself to confidentiality agreements, it could permit complainants and respondents to enter into limited disclosure agreements prior to probable cause determinations, but not agree to settlements with such terms after probable cause determinations. As long as the Commission is prepared to hold to its policy, and try those cases where respondents are not reasonable, the imposition of such policies can reasonably be expected to lead to quicker and better settlements.
g. Assure respondents that the Commissions process is fair and is limited to uncovering discrimination. This seventh and final element is as important as any of the others. The Commission must assure respondents and potential respondents both in word and deed that its interest is in fighting discrimination, not being a clearinghouse for the resolution of miscellaneous employment and housing disputes. Laws against discrimination are precious inheritances that took great struggle to achieve and take great struggle to maintain. They should never be wielded as a club to coerce an agreement from a respondent who has not committed an unlawful discriminatory practice.
9. The new administration must see that the Commission becomes a forceful advocate for the Citys Human Rights Law itself. As an institutional prosecutor, the Commission is uniquely well suited to identify the ways in which provisions of the Citys Human Rights Law need to be vindicated, and to find cases which would serve as appropriate vehicles to do so. As discussed earlier (see discussion at pages 19-20), there are a several areas that call for this approach, including the circumstances under which the City Human Rights Law provides for greater vicarious liability for employers than state or federal law, the scope of reasonable accommodations in housing (the costs of which are, in contrast to federal law, the responsibility of the housing provider), and a variety of disparate impact claims. In these cases, achieving a good settlement may not be the most important interest; rather, getting a judgment vindicating the principles of law at question may be the predominant interest, and should be pursued.
10. The new administration must recognize that many discrimination cases are complex, and require a great deal of investigatory, prosecutorial, and adjudicatory expertise. The fact that discrimination generally does not announce itself openly, and, indeed, is often wrapped in elaborate and well-crafted disguise means that, as the Commission restores staff, it much shift its balance of personnel more towards highly trained attorneys and away from those without extensive legal training. This must be done not only for the purpose of prosecuting cases, but for the purpose of conducting and overseeing investigations of cases. The Commission, like many other enforcement agencies such the U.S. Department of Housing and Urban Development, should have its own administrative law judges. Judges who are exposed on an ongoing basis to discrimination cases only will be able to maximize their expertise in the area. Moreover, it is important for the Commission to signal that discrimination litigation represents a specialized area which should not be lumped together with matters generally suitable for summary proceedings. Finally, the Commission should recognize that many cases will need extensive discovery, should not be resistant to forging ahead with such discovery when necessary, and should budget for the costs associated with such discovery.
11. The new administration must see that the Commission develops standards for investigations. There are myriad issues that arise in the conduct and documentation of an investigation. While the specific inquiries that need to be made vary from case-to-case, the Commission should set out minimum standards, so that an evidentiary record capable of being used at trial is developed to the maximum extent possible. Such standards, inter alia, would include standardized methods for recording data, would enjoin staff from treating position statements from counsel as the equivalent of evidence, would limit the circumstances in which witnesses could be interviewed as a group, would make certain that interviews for the purpose of gathering evidence are kept separate and distinct from meetings designed to determine whether a case could be conciliated, and would require that no probable cause determinations set forth with specificity the sources and substance of all information developed in the investigation.
12. The new administration must see that the Commissions performance measures are redesigned to focus on the extent to which discrimination is prevented and remedied, not how many cases are processed through its system. Performance measures need to look at substantive results. This means, first of all, tracking and reporting on monetary relief, affirmative relief, and civil penalties awarded or negotiated each year. It means setting goals for the volume and success of enforcement actions, and then analyzing why or why not such goals have been met. It means tracking and reporting the time it takes to handle cases. It means developing measures of how the incidence of discrimination in New York changes over time. In short, it means imagining performance from the point of view of the Commissions mission to prevent and remedy discrimination.
13. The new administration must see that the Commission develops alliances to leverage its resources. Even with increased staffing, the Commissions resources will not be adequate to deal fully with discrimination in New York City. The Commission needs to try to coordinate its efforts with other enforcement agencies. At the very least, it should be developing a joint case tracking project with other agencies serving the New York City area (such as EEOC, HUD, and the State Division) so that trends can be discerned in terms both of protected class and context of discrimination, and so that repeatedly allegations against a particular covered entity or within a particular industry can be looked at more systematically.
In addition, the Commission needs to brainstorm with the private anti-discrimination bar; and it needs to utilize capabilities of other City departments (such as demographic data generated by the Department of City Planning); The Commission needs to encourage academic institutions to conduct research to track the incidence of discrimination in New York; it needs to encourage these institutions and others to think of ways to lower the level of inhibition people feel in seeking non-traditional employment or in considering a move to a largely segregated neighborhood. If the Commission were to see, for example, that virtually no race discrimination cases in employment are receiving probable cause determinations (as would have been the case if FY00 cases had been reviewed in this fashion), it should reach out to community and advocacy organizations that deal with this issue to assess whether better ways can be developed to address the problem.
Finally, the Commission should seek to supplement the resources it has available to investigate and prosecute cases by seeking pro bono assistance from law firms in the City, and by offering clinical experience to law students under the supervision of law school faculty.
14. The new administration needs to begin a program of outreach to the public to inform people of their rights, and how the Commission can vindicate those rights. The need for outreach cannot be disputed in principle; the problem, of course, is engaging in outreach and then not being able to deliver services. Nevertheless, once the Commission has gotten its restaffing well underway, it is important to begin to test this process. The test might be outreach within a limited geographical area, or outreach in connection with a particular expression of discrimination. This type of program would not only help the people who are contacted, it would give the Commission a better sense of how much discrimination exists out in the City just waiting for a means by which it can be remedied.
15. The new administration needs to budget for the Commission with the anticipation that it will be handling a greater number of complaints. As the Commission becomes more effective, it will become a forum to which more and more people will turn. It is difficult to judge where precisely a new equilibrium of staffing and workload will be reached. It is safe to say, however, that, over the next several years, substantial staff increases will be needed to accommodate both the existence of a functioning program of systemic investigations and prosecutions, and an increase in complaints needed actually to be investigated each year from 1,000 to 1,500. Some of these increased costs will be recouped by the civil penalties that the City will recover; the remainder will have to represent the Citys commitment to being a single, united town.
III. The Law Department
A. Role of the Agency
Unlike the Commission on Human Rights, the Law Department has no obligation to investigate individual complaints of discrimination. Instead, the Law Department was given two crucial responsibilities that complement the Commissions responsibilities. First, the Law Department was given exclusive responsibility for developing and prosecuting cases of systemic discrimination in court. Admin. Code §8-401 et seq. The City Council took this action recognizing that: Systemic discrimination or a discriminatory pattern or practice is often hard to combat because of the difficulties entailed in accumulating evidence. This type of discrimination is particularly injurious because it is not simply an isolated incident but a repeated act founded upon a discriminatory policy, method of operating, or institutionalized procedure. The legislative declaration that created an express statutory procedure for these systemic prosecutions noted that among the injuries to the City arising from systemic discrimination were the social and moral consequences of such discrimination. The Council found that systemic discrimination polarizes the citys communities, demoralizes its inhabitants and creates disrespect for the law, thereby frustrating the citys efforts to foster mutual respect and tolerance among its inhabitants and to promote a safe and secure environment. Admin. Code §8-401.
The Law Department was specifically given its own authority (i.e., separate from that of the Commission) to initiate investigations, and was given subpoena power to aid it in gathering evidence in such investigations. Admin. Code §8-403. Penalties for pattern and practice violations included civil penalties up to $250,000, punitive damages, compensatory damages, and affirmative relief. Admin. Code §8-404.
The second role contemplated for the Law Department was as an advocate for the full and proper development of the provisions of the Citys Human Rights Law. When, as part of the comprehensive 1991 amendments to the Human Rights Law, the council created a private right of action by which individuals charging discrimination could bypass the administrative complaint process and go into court, Admin. Code §8-502, the council required each such plaintiff to serve a copy of his or her complaint on both the City Commission and the Law Department. Admin. Code §8-502(c). This provision was designed both to keep both agencies apprised of discriminatory claims or patterns that either or both might want to investigate, and to give the Law Department an opportunity to intervene in matters where the proper interpretation of the Citys Human Rights Law is at issue. The Law Department successfully did just that in Bracker v. Cohen, 204 A.D.2d 115, 612 N.Y.S.2d 113 (1st Dept. 1994), the case which confirmed the Citys right to have created a private right of action for Human Rights Law claims.
B. Findings and Observations
The Committee had the opportunity to meet with representatives of the Law Departments Affirmative Litigation Division, and to review publically available City budget and management reports. Drawing on these activities, the Committee has determined the following.
1. The Law Department has failed altogether to carry out its role to investigate and prosecute cases of pattern and practice discrimination. Representatives of the Law Departments Affirmative Litigation Division do assert that they are interested in bringing these types of claims, and some staff members were already experienced in handling anti-discrimination matters even prior to the creation of the pattern and practice provisions of Admin. Code §8-401 et seq. These representatives agreed that aggressive enforcement is obviously an important deterrent to violations of the Human Rights Law and that systemic discrimination is often invisible to its victims. Despite this, and despite the fact that the Law Department is given independent investigatory authority to investigate these claims, Admin. Code §8-403, the Law Department has not brought any of these claims in court.
Of the Law Departments more than 600 attorneys, not a single one has as his or her primary job responsibility the investigation or prosecution of these claims. The Law Departments position is that it relies on the City Commission to develop information, and that such information has not been forthcoming. Thus, it says, it has been looking for other sources (for the last 10 years).
The Law Department states that it does not have its own investigatory resources, but is able to get assistance from other agencies when needed.
2. The Law Department has failed altogether to carry out its role as an advocate for the full and proper development of the Human Rights Law. The Law Department, despite an asserted interest in doing so, has not in recent years intervened to fight for strong and effective interpretations of the Citys Human Rights Law. Just this year, for example, in a landmark case dealing with the interpretation of sexual orientation, disparate impact, and marital status provisions of the Human Rights Law, Levin v. Yeshiva Univ., 96 N.Y.2d 484, 730 N.Y.S.2d 15 (2001), the State Attorney Generals Office thought that the issues raised were important enough to intervene; the Law Department elected not to.
3. The Law Department may be inhibited from performing its role as an advocate for the Citys Human Rights Law by the fact that its primary role is as defender of the City, including its defender in actions charging discrimination. At the time that the comprehensive 1991 revisions to the Human Rights Law were passed, there were concerns about whether issue conflict would create problems for the Law Department in performing its two roles. Indeed, the Council, although giving the Law Department the role it had sought at the time of human rights investigator, prosecutor, and advocate, directed that the Corporation Counsel and chairperson of the Commission issue a report to the Council within 12 months, relating, inter alia, to effective enforcement of the Human Rights Law and to the prevention of any potential conflicts of interest. Local Law 39 of 1991, para. 3(b).
While other governmental law offices have successfully balanced affirmative litigation and defense functions, these concerns are nevertheless easily understood. For example, from the point of view of effective law enforcement and deterrence, the Law Department would want an expansive interpretation of the provisions of the statute dealing with an employers liability for co-worker harassment (e.g., Admin. Code §8-107(13)(b)(3)). From the point of view of the lawyer for City agencies charged with not having taking reasonable steps to prevent co-worker harassment , the Law Department would want a narrow interpretation of the same provision.
This problem was illustrated this past Spring. The Law Department argued, and a federal judge agreed, that the Citys Human Rights Law did not intend for punitive damages to be available in actions against the City. Katt v. City of New York, 151 F. Supp. 2d 313 (S.D.N.Y. 2001). This result helped the City insofar as insulating itself from such damages. On the other hand, an agency that was fully committed to advocating for a robust interpretation of the Citys Human Rights Law may well have brought to the Courts attention relevant aspects of the Laws legislative history that strongly suggest that the City Council had intended to make the City subject to punitive damages.
1. The new administration needs to reexamine the appropriateness of having the Law Department vested with its current authority in relation to discrimination matters. Given the potential issue conflict described above, serious consideration should be given to reassigning the anti-discrimination functions of the Law Department. If the measures proposed to revitalize the Commission on Human Rights were adopted, the centralization of all of the enforcement functions of the Human Rights law within that agency would be efficient and effective.
2. The new administration must honor the promise of the systemic litigation and intervention provisions of the Human Rights Law, and assign staff and establish goals accordingly. Regardless of whether these functions remain with the Law Department, or are transferred to the Commission on Human Rights, a serious commitment to their performance remains essential. As an interim step, assigning six of the Law Departments more than 600 attorneys (i.e., less than one percent of the total) to work on these matters would begin the process of undoing the damage of years of inaction. Investigative assistants would need to be hired either from within the Law Department, or in cooperation with other City agencies.
One easy method by which to identify areas of systemic discrimination is to contract with existing not-for-profit Fair Housing and Fair Employment groups that have the ability to conduct testing, and direct testing to be performed in areas of concern (e.g., locations of intense residential or occupational segregation).
A systemic investigations and prosecutions unit should be directed to develop immediately goals for bringing systemic actions and intervening to defend the proper construction of the Human Rights Law, and should establish performance measures which, like those proposed for the Commission, would focus on how the units work was preventing and remedying discrimination.
It is time to enforce the law.
COMMITTEE ON CIVIL RIGHTS
Marianne Engelman Lado, Chair
Sameer M. Ashar
Vivian Lee Brady
Richard Buery, Jr.
Chaumtoli Huq +
Arthur S. Linker
Ilann Margalit Maazel
John J. OConnell
Barbara Olshansky +
Pamela J. Papish
Jeffrey S. Trachtman
Rose C. Cuison Villazor
E. Vincent Warren
Hon. Bonnie Wittner
* Principal Author; Chair, Subcommittee on Anti-Discrimination Law Enforcement
** Member of Subcommittee on Anti-Discrimination Law Enforcement
1 In a recent study of the top 50 metropolitan areas by researchers at the State University of New York at Albany, only Detroit and Milwaukee had higher segregation indices for black and white children than did New York (New York Times, May 6th, 2001). When the City Council passed comprehensive revisions to strengthen the Citys Human Rights Law in 1991 it was, among other things, seeking to address the Citys race relations problem by attacking entrenched patterns of segregation, discrimination, and bigotry. Report of the City Council Committee on General Welfare, p. 2. When questioned, the Affirmative Litigation Division of the Citys Law Department agreed that systemic discrimination remains a major problem in New York City (Meeting between representatives of the Affirmative Litigation Division and of the Committee, May 12, 2000).
2 2000 Catalyst Census of Women Corporate Officers and Top Earners, Catalyst, .
3 Entities on the state level with anti-discrimination authority include the Division on Human Rights, and the Attorney Generals Office. Federally, there are even more entities with this responsibility, including the Equal Employment Opportunity Commission, the Department of Housing and Urban Development, the Civil Rights Division of the Justice Department, the United States Attorneys Office for the Southern and Eastern Districts of New York, and the Office of Civil Rights in various federal agencies including Education and Health and Human Services. The Committee hopes that this report is only the first installment in a continuing series concerning the operations of each and all of these agencies, with follow-up reports done to assess changes in practices and efficacy over time.
4 In November, 2001, voters approved a referendum that gave the Commission status as a Charter agency (new Charter Chapter 40). The referendum reaffirmed that it is the public policy of the City to promote equal opportunity and freedom from unlawful discrimination through the provisions of the Human Rights Law, and the report in support of the proposal by Charter Commission staff asserted that incorporating into theCharter the fundamental idea that the well-being of the City of New York depends on the elimination of bias, prejudice, unlawful discrimination, and bigotry from the civic life of the City will be of great symbolic value. Staff Report to the Members of the Charter Revision Commission, July 27, 2001, p. 51.
5 See Matter of 119-121 East 97th Street Corp. v. NYC Commission on Human Rights, 220 A.D.2d 79, 88, 642 N.Y.S.2d 638, 644 (1st Dept. 1996) (The legislative history of the amendments to the Administrative Code... indicates that they were intended to strengthen and expand the enforcement mechanisms of the law so the Commission could prevent discrimination from playing any role in actions related to employment, public accommodations, housing and other real estate). These amendments included the statutory recognition of the Commissions prosecutorial bureau as the party to every complaint, the presumed existence motion practice in Commission proceedings, and the ability to compel discovery. Admin. Code §8-117. They included provisions requiring covered entities to maintain records, and sanctions for non-compliance with discovery orders. Admin. Code §8-118. They included the requirement that respondents promptly submit a verified answer containing their affirmative defenses. Admin. Code §8-111. Civil penalties were made available for the first time, Admin. Code §8-126, and penalties for violating Commission orders were also imposed. Admin. Code §8-124. Notably, the drafters of the amendments recognized that not all cases would be the proper subjects for mediation, but insisted that all conciliation agreements be embodied in an order of the Commission, the violation of which would subject the offending party to penalties. Admin. Code §8-115.
 Remarks of the Mayor at Public Hearing on Local Law, June 18, 1991, p. 5.
7 A meeting was held on May 4, 2000. References in this report to statements, positions, or beliefs of the Commission are derived from statements of Commission representatives at that meeting, unless otherwise specified. References in this report to statements, positions or beliefs of the Law Department are derived from statements of representatives of its Affirmative Litigation Division made at a meeting with a Committee representative on May 12, 2000, unless otherwise specified.
8 Mayors Management Report, September, 1992, p. 466; Mayors Management Report, September, 1993, p. 508.
9 Mayors Management Report, October 2001, Indicators Volume, p. 197; Mayor Freezes $1 billion in Spending, NewYork Times, October 10, 2001, p. D1; Mayor Submits $766 Million In Cuts to Balance City Budget, New York Times, December 4, 2001, p. D4.
 Mayors Management Report, October 2001, Indicators Volume, p. 197.
 See cautionary discussion at pages 22-23, infra.
13 It is thus revealing of the Commissions view of itself as a passive or reactive entity that it states, The number of cases filed each year is not within the Commissions control. Mayors Management Report, October, 2001, Summary Volume, p. 537.
14 The Affirmative Litigation Division of the Law Department agrees that systemic discrimination is often invisible to its victims.
15 The Commission continues to focus its efforts on resolving cases through mediation and settlement. Mayors Management Report, February, 2000, Indicators Volume, p. 203, note h.
16 The Fair Housing Index: An Audit of Race & National Origin Discrimination in the Greater Washington Rental Housing Market, The Fair Housing Council of Greater Washington (1997). The Mayor has recognized the utility of proactive testing in some contexts. In 1999, in the wake of the actor Danny Glover having being passed up by taxi drivers, he announced a testing program to determine the scope of race-based refusals to serve passengers. Probably we should have done it 3 years ago, 5 years ago, the Mayor said, but also it would have been done 7 years ago, and 8 years ago, and 10 years ago, and 12 years ago, and 15 years ago. So, you can keep using that excuse forever. This is a good time to do it. It got a great deal of attention because it involved a person of great notoriety." He announced the intention to take away the cabs of violators: What we're trying to do," the mayor said, "is intensify [previous efforts] dramatically in order to make the point." Cabbies Who Bypass Blacks Will Lose Cars, Giuliani Says, New York Times, November 11, 1999, p. A1.
17 For example, an Equal Employment Opportunity Commission investigation of a pattern harassment of women at Ford Motor Company resulted in a settlement that included a fund to pay nearly $8 million in damages to up to 900 victims, an additional $10 million for anti-discrimination training of Ford staff, and a commitment to have 30% of supervisory positions at the plants where the harassment occurred held by women within three years of the settlement. U.S. and Ford Settle Harassment Case, New York Times, September 8, 1999, p. A14.
18 More positively, half of the NPC determinations occurred no more than 568 days (approximately 19 months) after the case had been filed. Likewise, more than half of those complainants who withdrew their complaints in consideration of having received some benefit did so less than a year after having filed a complaint. What is clear however, is that there are large groups of cases that where nothing has happened for longer periods of time. Most notably, the time from filing to disposition of the cases closed for administrative convenience, looking at the middle two quartiles (25th to 75th percentile), averaged 1901 days (5 years and 2 months); the median was 2191 days (fully six years).
 Prior to the 1991 amendments, the submission of an answer was optional.
20 Of these five trials, two resulted in dismissals. A reasonable accommodation in housing violation resulted in an order awarding $15,000 in compensatory damages, and monitoring of the respondents practices. No civil penalty was awarded. Commission on Human Rights ex rel. Raymond v. 325 Cooperative, Inc., 1999 WL 152526 (N.Y.C.Com.Hum.Rts.) A second housing discrimination case resulted in an order requiring monitoring, awarding $70,000 in compensatory damages to three complainants, but, again, not imposing any civil penalty. Torres et. al. v. Prince Management Corp., 1997 WL 1051932 (N.Y.C.Com.Hum.Rts.). A race-based denial of admission to a public accommodation resulted in an order awarding $5,000 in compensatory damages, and assessing $5,000 in civil penalties. Commission on Human Rights and Southgate v. United African Movement and Maddox, 1997 WL 1052037 (N.Y.C.Com.Hum.Rts.). Depending on circumstance, civil penalties up to $100,000 may be assessed against discriminators. See discussion at pages 15-16, infra.
 Remarks of the Mayor at Public Hearing on Local Laws, June 18, 1991, p. 3.
23 Unfortunately, only two of these agreements provided for monetary relief for the complainant. Likewise, in FY00, there were 11 cases withdrawn with the benefit of a reasonable accommodation, none of which provided for monetary compensation to the complainant. None of the conciliations or withdrawals provided for civil penalties. It is, of course, essential, that an agency recognize the importance of various forms of non-monetary relief, and the Commission is to be commended for having achieved reasonable accommodations for the individuals involved in these cases. The countervailing issue, however, is that the entities that precipitated complaints by not having fulfilled their legal obligations in the first place are merely being required to do what they were supposed to do in the first place. In other words, however well-intentioned the focus on getting non-monetary relief is, there is little incentive created among housing providers at large to agree to changes informally asked for by tenants because the consequences of refusal are so limited. One way to balance interests would be to permit zero-dollar settlements early in the process, but in the cases reviewed, some had been pending for years prior before a settlement was reached.
24Among the agencys other powers is the authority to compel discovery at the pre-hearing stage. Admin. Code §8-117.
25 Provisions imposing confidentiality on complainants were ubiquitous in the conciliation agreements entered into from FY98 to FY00.
26 The validity of this last point is, of course, contingent on the publicized results being ones that convey the message that the costs of discrimination are substantial, not de minimus.
 See Mayors Management Report, October 2001, Summary Volume, pp. 537-38.
28 Report of the Committee on General Welfare, p. 12. This Committee Report also recited the liberal construction provisions of City Law, Admin. Code §8-130, and stated that: It is imperative that restrictive interpretations of state or federal liberal construction provisions are not imposed upon City Law. Committee Report at LMA 51-52. Referring to this Report, the Mayor stated before signing the bill that, It is the intention of the Council that judges interpreting the Citys Human Rights Law are not to be bound by restrictive state and federal rulings and are to take seriously the requirement that this law be liberally and independently construed. Mayors Remarks, supra, at LMA 93. See Burger v. Litton Indus., Inc., 1996 WL 421449. at *19 (S.D.N.Y. Apr. 25, 1996) report adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (the legislative history of the NYCHRL makes clear that it is to be even more liberally construed than the federal and state anti-discrimination laws).
29 Some Human Rights Specialists on the Commissions staff do in fact have legal training. What is at issue is the question of how the Commission can best achieve staffing appropriate to the complexity of the tasks before it.
 Citywide Job Vacancy Notice, July 24, 2001.
 Mayors Management Report, October 2001, Summary Volume, p. 513.
32 The Commission states that it does not track the time it takes to complete its tasks, information the Committee was able to derive from a review of the individual case determinations provided pursuant to its Freedom of Information Law request. Likewise, the Committees review of documents provided by the Commission established that, in FY98-FY00, there were 57 probable cause determinations. This contrasts with a total of 2,263 cases that the Commission reported in Mayors Management Reports to be closed for all reasons (no probable cause, administrative closure, withdrawals, and conciliation agreements) in the same period. In other words, there was one probable cause determination for every 39 cases that were closed on other bases.
33 See discussion, supra, pages 7-8, of the 80.9% of FY00 case closures that were withdrawals without benefit, failures to locate, miscellaneous administrative convenience dismissals, and no probable cause determinations)
34 Having reviewed the FY00 no probable cause determinations, the Committee believes that a substantial number of those determinations were made in cases that had, at best, barely colorable allegations of discrimination.
35 This is not to suggest that a particular number of probable cause determinations, or trials conducted, is the equivalent of success in the agencys mission. It would help no one, and would drain agency resources, were probable cause to be found where it did not actually exist, or if a non-meritorious case were taken to trial. On the other hand, if very few determinations of probable cause are being made, and very few cases being taken to trial, it is essential to know this and to ask why. Likewise, if a prosecutors office is losing a substantial percentage of its trials, it is reasonable to ask if it is selecting its cases well enough; if that office is not losing any of its cases, it is reasonable to ask if it is overly cautious.
36 This measure will be especially important if the Committees recommendations regarding breaking the cycle of first-in, first out are adopted. Once new cases begin to flow into the Commission, it will be crucial to see that they are all being handled expeditiously.
37 This presumes a doubling of complaint filings from approximately 1,000 per year to a total of 2,000 per year, and the proposed ability of the Commission to decline to prosecute 25% (500) of those cases.
 Report of City Council Committee on General Welfare, p. 9.
 The Affirmative Litigation Division employs approximately 22 attorneys.
40 Most notably, an advocate for the City Human Rights Law would likely have discussed the ways in which a predecessor version of proposed legislation did and did not differ from the version ultimately adopted . For example, the court held that there was an insufficient basis upon which to conclude that the City intended to subject itself to punitive damages. In fact, Section 8-502(a) of the City Human Rights Law as adopted as part of the 1991 amendment is identical to that proposed by the predecessor bill (Intro. 1266 of 1989) except for two changes directly on point: (a) the exclusion of city agencies from exposure to the private right of action was eliminated; and (b) rather than the general recitation of the availability of damages contained in the predecessor bill, Local Law 39 of 1991 explicitly and affirmatively permitted any aggrieved person to have an action for damages, including punitive damages... Local Law 39 of 1991, Section 8-502(a) (emphasis supplied). The most reasonable interpretation of these changes is that the Council knew that it was exposing the City and its agencies to the private right of action and that the inclusion of explicit punitive damages language was designed to remove any doubt about the availability of such damages against any and all defendants. The alternative explanation is to assume that the Council removed the exclusion, added punitive damages without limitation as to defendant, but was somehow unaware that the punitive damages would apply to City defendants.
Similarly, the Court reasoned that the Citys common law immunity from punitive damages was intended to be preserved because the damages provision was prefaced by the phraseExcept as otherwise provided by law... In fact, that phrase was contained in the private-right-of-action section of the predecessor legislation, the very proposal that had completely excluded the City from exposure to the private right of action. An advocate would have argued that it cannot be inferred that the Council intended to import a safe harbor of common law municipal immunity when the language being held over was from a bill that had specifically excluded the City from any exposure.
41 The Committee would
like to acknowledge the assistance of Ronald J. Tabak, former Chair of
the Committee, and of Rita Saytee, a former member of the Committee who
has continued to work with the Subcommittee on Anti-Discrimination Law
Enforcement. The Committee would also like to acknowledge Loren Gesinsky,
another former member of the Committee. Mr. Gesinsky was the Chair of
the Subcommittee on Anti-Discrimination Law Enforcement during a portion
of the time that the Subcommittee was actively engaged in this project,
generously made the resources of his firm available to secure copies of
the materials the Subcommittee sought pursuant to the Freedom of Information
Law, and has continued to work with the Subcommittee.