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Civil Rights Restoration Act: Opposed by Mayor, Stalled in Council
by Andy Humm
A bill to strengthen the city’s human rights law is sponsored by a veto-proof majority of 38 members of the City Council, supported by a coalition of more than 30 civil rights groups, and passed through three public hearings, but it has yet to be voted on.
“We’re going to get that bill done after we fix some technicalities,” Council Speaker Gifford Miller told me (though he never provided clarification of what “technicalities” needed fixing). On the other hand, Mayor Michael Bloomberg strongly opposes the bill, Intro 22, the Local Civil Rights Restoration Act.
When I first wrote about this bill in December 2003, its chief sponsor, Councilmember Gale Brewer, said, "The administration doesn't love our bill, but we're going to plow ahead. I'm working to expand the coalition and hope to pass it early next year." Now, Brewer says, “We’re trying to get a bill that we can get passed.” This time, she said it would be done by the end of this year.
Brewer was hopeful when Human Rights Commissioner Patricia Gatling appeared at a budget hearing before the General Welfare Committee on March 14 and, in response to a question, expressed support for this civil rights bill. Brewer said the commissioner’s response marked “a big change” in the administration’s stance.
But at an April 14 hearing on the bill itself, Gatling cited two “areas of concern,” objecting to the heart of the bill.
One is a provision that requires the Commission to do “thorough” investigations into discrimination complaints, saying such a standard “would undermine every Commission decision, expose complainants, respondents, and the Commission to increased litigation, and divert resources from other important matters.”
Gatling also testified that the key section of the bill that “instructs us to interpret the [City] Human Rights Law more liberally than existing law without setting the actual standard will be difficult if not impossible for covered entities (including city agencies) and the entire legal community, including judges and the Commission itself, to follow.” But when pressed for specific language that the administration would accept, Gatling did not respond.
Bob Perry, legislative director for the New York Civil Liberties Union, disputed Gatling’s objections. “The provisions are quite reasonable,” he said. “Our City Council has a great history of protecting our civil rights as evidenced in the early 1990s,” when the last strengthening of the human rights law was enacted under Council Speaker Peter Vallone and Mayor David Dinkins. “But we’ve seen a continued curtailment of that legislative intent and all this bill is designed to do is to restore those rights as originally intended by the Council.”
Gatling's office said it was not able to provide a spokesperson for the City Commission on Human Rights to address these concerns.
What The Law Would Do
The Civil Rights Restoration Act would do six main things, according to Craig Gurian, a former chief counsel of the law enforcement division of the City Commission on Human Rights who worked on the last big revision in 1991 and who is now executive director of the Anti-Discrimination Center of Metro New York.
First and foremost, it states that the “City’s Human Rights Law has been construed too narrowly to ensure protection of the civil rights of all persons covered by the law.” It says, “Interpretations of federal and New York State civil and human rights law shall not be used to limit or restrict the provisions of this title from being construed more liberally than those laws to accomplish the purposes of this title.”
Gurian said, “It protects the city law against cutbacks by an increasingly conservative judiciary. Concerns about this provision are misplaced. Judges simply need to consider what interpretation of the law best achieved its broad purposes, not treat city law as a mere carbon copy of federal. Requiring independent construction is an instruction that should not be difficult for judges to follow.”
Second, it provides stronger protection against retaliation when you file a discrimination case. Some judges, Gurian said, look for material harm before recognizing negative actions against a complaining employee as retaliation. Under the present law, something like getting transferred all the way across the city might not be held to be retaliation. “What’s best is to prevent retaliation,” he said.
Third, the bill allows for attorney’s fees even if a case is settled. “This is important when the case is not about damages, but changing policy,” Gurian said. Without such fees, attorneys are much less likely to take these cases in the first place. The provision in the bill allowing for them corrects a United States Supreme Court decision a few years ago that held that attorney fees are not available when a case is settled. “It gave defendants an incentive to resist, drive up costs, settle, and financially drain the plaintiffs,” he said.
Fourth, the bill would increase civil penalties available when cases are brought administratively, i.e., to the Human Rights Commission. The current cap is $50,000 where willfulness is not established, $100,000 when it is. The bill raises those figures to $125,000 and $250,000 respectively to give the penalties some impact, especially when courts are prone to use the cap as a penalty only for the largest and richest defendants.
Fifth is the requirement for “thorough investigations.” While the Commission objects to the word in the City bill, it is the standard under the federal Fair Housing Act which mandates city and state agencies “engage in timely, comprehensive, and thorough fair housing complaint investigations.” Gurian said, “’Thoroughness’ would mean interviewing fact witnesses in discrimination cases, not just taking the word of a defense attorney.”
Finally, the bill makes “partnership status” a protected category under the Human Rights Law. The provision is a first step towards restoring protection for unmarried couples. The New York State Court of Appeals now holds that under the existing “marital status” category, only an individual’s status (a married, divorced, or single person) is covered rather than the status of a couple. Thus, a landlord who does not want to rent to a couple living together without benefit of marriage can legally discriminate against them. This contradicts a 1977 decision of the Human Rights Commission, but all that is added by this 2005 proposal is the new category of “partnership status,” which is defined as applying only to legally registered domestic partners. Live-in lovers are still at risk, but advocates hope that the bill's independent construction provision will cause courts to reexamine marital status coverage more broadly.
Commissioner Gatling supports the addition of “partnership status” but is opposing another pending human rights bill, Intro 57, requiring the posting of the Human Rights Law at all covered establishments. She testified that it would require the printing of “at least half a million” signs and would cost “3-5 million dollars, an amount that exceeds the Commission’s entire tax levy budget, which is currently below three million dollars.” She also said her agency “has no mechanism to issue and adjudicate notices of violation.”
New York State has a requirement that its human rights law be posted in covered workplaces and public accommodations, but the City law has more and different categories.
Tom Smith, a veteran gay activist and past president of the Stonewall Democratic Club who has been pushing the posting bill for a decade said, “Thousands of people don’t even know a human rights law exists and how they’re covered and that the city has set a higher standard that the federal and state governments. It is important for everybody to know their rights and for businesses to know what they cannot do in terms of discrimination.” He said Gatling’s estimate of costs were way out of line, noting he could get three-color signs retail for 59 cents at Kinko’s and that done in bulk, the signs could be produced for one or two cents apiece.
JUDGE BRUCE WRIGHT REMEMBERED
The life Bruce McMarion Wright, the attorney, judge, poet, and civil rights leader who died at age 86 on March 27, was celebrated at City College’s Aaron Davis Hall on June 4 before an overflow crowd of several thousand people. Among those offering remembrances were Harlem’s powerbrokers and Wright’s contemporaries--former Mayor David Dinkins, Congressman Charles B. Rangel, former New York Secretary of State Basil Paterson, and former Manhattan Borough President Percy Sutton.
Sutton recalled that when he represented Malcolm X, Wright offered to help with the legal work. Sutton told Wright he didn’t want him to be out front. “He was my ‘Deep Throat,’” Sutton said.
Paterson said that as a young attorney, Wright was in a courtroom and heard the judge make a racist remark to a black woman. Wright forced the judge to publicly apologize, despite being urged by some colleagues to let it pass.
Wright’s son Keith, now a Harlem Assemblyman, said that as a child, he and his father and brother were refused entry onto a Manhattan bus by a racist driver. “Dad put us boys out in front blocking the bus until the driver relented,” Keith Wright said.
Bruce Wright’s longtime law clerk, Debbie Woll, said that working for the judge was an experience. Strangers who knew of his reputation for championing social justice would just show up to see him in chambers. “A court officer would call upstairs and say, ‘So-and-so is here to see Judge Wright.’ Bruce would say, ‘Never heard of him. Send him up!”
His son Patrick told a story of how a cop once stopped Bruce’s mother, who was white and walking with her little son. “Is this Negro boy bothering you, ma’am,” the cop said. His mother replied, “Officer, this boy has been bothering me for as long as I can remember.”
Keith Wright noted that his father, derided as “Turn ‘Em Loose Bruce” by the police union and some of the tabloids for his policy of not imposing punitive bail, “taught us to question authority.”
Rev. Herb Daughtry, himself a civil rights activist, invited Wright, described as a “devout atheist,” to give the Easter sermon at his Brooklyn church at the height of the controversy over his bail policies. When a reporter asked after the service what Wright thought of the Police Benevolent Association’s condemnation of him, he replied, “My father told me never to get in a pissing contest with a skunk.”
Wright was once questioned about why he went into his office at 5 AM. “Because the white man was there a half hour earlier,” he was said to reply. He was also said to want to be remembered more for his poetry than for being a judge. One of his poems was read by his two grandchildren, Jared and Jordan.
In a video interview by the celebration’s host, Gil Noble of WABC-TV’s “Like It Is,” Wright said, “I’ve never grown up and it ruined several of my marriages, but I hope I never will.”
An extended excerpt of Wright’s book “Black Robes, White Justice” is available at http://members.aol.com/Streetnews143/BWright.htm
Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.
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