Awards attorney fees and expert witness fees in employment discrimination cases.
BILL NUMBER: S3884
TITLE OF BILL :
An act to amend the executive law, in relation to providing for the award of attorney's fees and expert witness fees in appropriate cases
PURPOSE OF BILL :
This bill would amend the Executive Law. to provide for an award of attorney's fees and expert witness fees in all appropriate cases of discrimination.
SUMMARY OF PROVISIONS :
Section 1 of the bill would amend Executive Law § 297 (10) to omit the phrase "(w)ith respect to cases of housing discrimination only," so that attorney's fees. may be awarded in all appropriate cases of discrimination and to provide that, in cases of employment discrimination only, the award of attorney's fees will be limited to cases in which the employer has 50 or more employees. This section would also provide for expert witness fees to be awarded pursuant to the same standards as an award of attorney's fees.
Section 2 would provide that the bill will become effective 90 days after enactment.
EXISTING LAW :
Currently attorney's fees may be awarded only in cases of housing discrimination.. There are no provisions for expert witness fees.
LEGISLATIVE HISTORY :
This is a new proposal.
STATEMENT IN SUPPORT
In order to create uniformity and consistency within the Executive Law, the limitation on the provision of attorney's fees to housing discrimination cases should he removed so that attorney's fees can be awarded in appropriate cases in other areas of the Division's jurisdiction, such as employment and places of public accommodation.
The majority of cases filed under the Executive Law are employment cases. Often, discrimination victims have been terminated, or forced to leave their jobs because of intolerable conditions .such as pervasive sexual harassment, and are frequently not in a position to pay for legal representation. Although the law provides for Division attorneys or agents to present cases at a public hearing when probable cause has been found, there are no provisions for legal representation in the investigation and conciliation stages of the Division proceedings, nor are there provisions for representation for persons who pursue their claims directly in State court.
A provision for an award of attorney's fees in employment and other discrimination cases would be consistent with the discrimination laws of many other states, as well federal law, and would permit a more-robust enforcement of the law for the general benefit of the public.
A wards for expenditure of fees for expert witnesses should be awarded in a like manner, so that the Division will have the benefit of a complete record in making its determinations.
BUDGET IMPLICATIONS :
This proposal has no fiscal implications.
EFFECTIVE DATE : This proposal would take effect 90 days after becoming law.
STATE OF NEW YORK ________________________________________________________________________ 3884 2009-2010 Regular Sessions IN SENATE April 2, 2009 ___________Introduced by Sens. C. JOHNSON, DIAZ, ONORATO, SAVINO -- (at request of the Division of Human Rights) -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations AN ACT to amend the executive law, in relation to providing for the award of attorney's fees and expert witness fees in appropriate cases THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 10 of section 297 of the executive law, as added by section 17 of part D of chapter 405 of the laws of 1999, is amended to read as follows: 10.
[With respect to cases of housing discrimination only, in]IN an action or proceeding at law under this section or section two hundred ninety-eight of this article, the commissioner or the court may in its discretion award reasonable attorney's fees to any prevailing or substantially prevailing party; provided, however, that a prevailing respondent or defendant in order to recover such reasonable attorney's fees must make a motion requesting such fees and show that the action or proceeding brought was frivolous; and further provided that in a proceeding brought in the division of human rights, the commissioner may only award attorney's fees as part of a final order after a public hear- ing held pursuant to subdivision four of this section. In no case shall attorney's fees be awarded to the division, nor shall the division be liable to a prevailing or substantially prevailing party for attorney's fees, except in a case in which the division is a party to the action or the proceeding in the division's capacity as an employer. WITH RESPECT TO CASES OF EMPLOYMENT DISCRIMINATION ONLY, THE AWARD OF ATTORNEY'S FEES WILL BE LIMITED TO THOSE CASES IN WHICH THE EMPLOYER HAS FIFTY OR MORE EMPLOYEES. EXPERT WITNESS FEES MAY BE AWARDED IN THE SAME MANNER AS ATTORNEY'S FEES. In order to find the action or proceeding to be frivo-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09042-01-9 S. 3884 2
lous, the court or the commissioner must find in writing one or more of the following: (a) the action or proceeding was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or (b) the action or proceeding was commenced or continued in bad faith without any reasonable basis and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action or proceeding was promptly discontinued when the party or attorney learned or should have learned that the action or proceeding lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith. S 2. This act shall take effect on the ninetieth day after it shall have become a law.