Following the Presidential election and reports of increased discriminatory harassment, many Americans have expressed concerns that the federal government may weaken its enforcement of civil rights laws. For those of us who live, work or attend school in New York, it is important to know and to enforce the strong civil rights protections that exist under New York City and New York State law.
Both New York State and New York City have enacted Human Rights Laws. These laws generally prohibit discrimination in public accommodations, employment, and housing based on race, color, sex, national origin, disability, religion/creed, marital status, sexual orientation, gender identity, and citizenship status (City law only), as well as other categories. Concerning students, the City Human Rights Law’s protections generally apply to “educational institutions.” The State Human Rights Law currently prohibits discrimination in private, non-sectarian educational institutions.
The City Human Rights Law expressly states that it should “be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether” similar provisions in federal or state laws have been read in this manner. The New York Court of Appeals held in Albunio v. City of New York that it must construe the law “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Similarly, the U.S. Court of Appeals for the Second Circuit ruled in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.: “[E]ven if the challenged conduct is not actionable under federal and state law, federal courts must consider separately whether it is actionable under the broader New York City standards.” For example, the City law has lower thresholds than federal law for proving a claim of hostile work environment harassment, or a claim of retaliation.
Any person may enforce these State and City rights by filing a lawsuit in court, or by filing a complaint with the New York City Commission on Human Rights or New York State Division of Human Rights. Both agencies can order damages and other relief, and facilitate settlements. For example, in May 2016, the City Commission resolved a claim by a Dunkin Donuts franchise employee who said her manager had referred to her as “a crazy Egyptian.” Also in 2016, the Appellate Division upheld a State Division order of damages, a fine, and new training and procedures for a private farm and wedding business that refused to host a wedding ceremony and reception for a lesbian couple (Gifford v. McCarthy).
The Attorney General independently possesses authority to enforce federal, state and local civil rights laws against private or public entities. The Civil Rights Bureau of the Attorney General’s office has, for example, enforced provisions requiring language access for individuals with limited English proficiency, with private pharmacies and hospitals as well as local school districts and police departments.
Educational opportunities are also protected by the New York Education Law, including the Dignity for All Students Act (DASA). DASA prohibits harassment, bullying and discrimination by public elementary and secondary school employees or students, based on “a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex.” “Gender” is defined to include gender identity or expression. The DASA statute and regulations require school districts to implement anti-discrimination policies and complaint procedures, provide training, report incidents of harassment and discrimination, and designate coordinators at each school to ensure compliance.
The Education Law also includes detailed provisions concerning services for students with disabilities, and English Language Learner students. In addition, the Education Law prohibits discrimination by higher education institutions, and requires that higher education institutions adopt an “affirmative consent” standard in their policies prohibiting sexual misconduct.
The Education Commissioner has broad authority to enforce the Education Law, and has also collaborated with the Attorney General. In November 2014, these agencies together reviewed school district procedures to ensure that the districts enrolled children without regard to immigration status, as required by State and federal law. The Attorney General later entered agreements with more than 20 of the school districts. The Attorney General and the Education Commissioner have also issued joint guidance on implementing DASA, and advised school district officials on November 18, 2016: “We must focus our efforts to ensure that our schools are safe havens where students can learn without fear of discrimination, harassment, or intimidation.”
In this time of change and uncertainty, New York’s anti-discrimination laws remain strong.
By: Lisa F. Grumet, Adjunct Professor of Law, is the Associate Director of the Impact Center for Public Interest Law at NYLS, and directs the Impact Center’s Diane Abbey Law Institute for Children and Families. She also serves as Title IX Coordinator.