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New York State Human Rights Law Offers Few Protections Without Attorney's Fees

January 16, 2010

The New York State Human Rights Law (NYSHRL) has the potential to offer New Yorkers civil rights protections beyond federal law, but these rights cannot be realized without the provision of attorney’s fees.  While NYSHRL provides a right to attorney’s fees in housing discrimination cases,1 92% of all complaints filed with the New York State Division of Human Rights (DHR) are for employment and disability discrimination matters which do not include a right to attorney’s fees. 2 The denial of attorney’s fees in all discrimination cases outside of housing undermines the broad protections of the NYSHRL and conflicts with all federal civil rights statutes.

NYSHRL and Federal Civil Rights Statutes

New York was the first state to enact a human rights law “to insure that every individual has an equal opportunity to participate fully in the economic, cultural, and intellectual life of the state.” 3 DHR was the executive agency created to eliminate and prevent discrimination in employment, housing, credit, places of public accommodations, and non-sectarian educational institutions, based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status. 4 The NYSHRL can provide civil rights protections beyond federal, but there is little incentive to enforce these rights in state court without the provision of attorney’s fees.

State and federal courts have found little difference between the substance of discrimination claims and defenses under the NYSHRL and federal civil rights discrimination statutes including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973 (Section 504). 5 The only difference is that where each of these federal employment and disability rights statutes provide for attorneys fees, the NYSHRL does not.

Unlike Federal Civil Rights Statutes, NYSHRL Does Not Provide Attorneys' Fees

Even though the NYSHRL offers individuals similar substantive protections as the federal civil rights statutes, it does not provide for an equivalent award of attorneys fees. 6 When the Civil Rights Act of 1964 was passed, Congress realized that enforcement would have to rely in part upon private litigation as a means of securing broad compliance. 7 This was because when a plaintiff brings a civil rights lawsuit “he does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” 8

The Supreme Court explained how if plaintiffs are forced to bear the cost of their attorney’s fees, few would be in a position to advance the public interest. 9 Congress enacted the provision for attorney’s fees in civil rights cases to advance the public interest and encourage individuals to seek judicial relief. 10 New York State must add an attorney’s fees provision to the NYSHRL for these same reasons, to advance the public interest and ensure all New Yorkers can enforce their civil rights protected under state law.

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, is the most widely used statutory instrument to seek an award of attorneys' fees in federal civil rights cases. 11 Congress enacted §1988 to ensure that low-income individuals would have “effective access” to the courts to enforce civil rights laws. 12 The determination of attorneys' fees under § 1988 is also the same analysis used under Title VII, Section 504 and the ADA. 13 The only difference is under the ADEA, where attorney’s fees are only available for plaintiffs. 14  New York must enact an attorney’s fees provision similar to §1988 to  ensure all individuals can enforce the broad range of rights protected by the NYSHRL.

Other Human Rights Laws and New York Statutes Provide for Attorneys Fees

The New York City Human Rights Law (NYCHRL) and other state laws already provide for attorney’s fees. Attorneys fees under the NYCHRL have been authorized since 1991 and provide that: "[i]n any civil action commenced pursuant to this section, the court, in its discretion, may award the prevailing party costs and reasonable attorney's fees." 15 The language of the NYCHRL attorney's fee provision is indistinguishable from the provisions in the federal civil rights statutes, yet this language is absent from the NYSHRL. 16 Certain other New York statutes governing employment relationships also provide for attorneys' fees, 17 as does the New Real Properly Law. 18

To ensure New Yorkers are protected from all forms of discrimination and have the same access to our state court system as they do under federal civil rights statutes, the New York State Human Rights Law must be amended to include an attorney’s fees provision. 

Footnotes

1  N.Y. Exec. Law §297(10).
2  New York State Division of Human Rights, caseload statistics, available at http://www.dhr.state.ny.us/division%27s_performance_html/our_caseload.html
3  N.Y. Exec. Law § 290(3), N.Y. Exec. Law Art 15.
4  N.Y. Exec. Law §§ 290(3), 291, 296.
5  See Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir.2008); Helmes v. South Colonie Cent. School Dist., 564 F.Supp.2d 137, 152 (N.D.N.Y. 2008) citing Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n. 3 (2004); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 154-56 (2d Cir. 1998).
6  New York City Bd. of Educ. v. Sears, 83 A.D.2d 959, 960 (2d Dep't 1981); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir.1997).
7  Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401 (1968).
8  Newman at 402; Quaratino v. Tiffany & Co., 166 F.3d 422, 426 (2nd Cir.1999).
9  Newman at 402.
10  Id.
11  42 U.S.C. § 1988.
12  Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 635-36 (2001).
13  See Independent Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 759 n. 2, 109 (1989); Myree v. Local 41, Int'l Bhd. of Elec. Workers, 847 F.Supp. 1059, 1063 (W.D.N.Y.1994).
14  Steinberg v. St. Regis/Sheraton Hotel, 583 F.Supp. 421, 424 (S.D.N.Y.1984).
15  Administrative Code § 8-502[f].
16  See Kenneth W. Taber, Editor-in-Chief, Amy J. Beech, 13 N.Y. Prac., Employment Litigation in New York § 9:2, September 2008.
17  See Labor Law §§ 75(b), 215(b), and 740 (5)(e).
18  See Real Property Law § 234.

 





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