Relates to the provision of attorney's fees in cases of housing, employment or credit discrimination.
Ayes (63): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
BILL NUMBER:S5874 REVISED 6/26/13
TITLE OF BILL: An act to amend the executive law, in relation to the provision of attorney's fees in cases of housing, employment or credit discrimination; to amend the executive law, in relation to the awarding of reasonable attorney's fees
This bill would enact part of the New York Women's Agenda, which would break down barriers that perpetuate discrimination and inequality based on gender. New York State has a proud history and tradition of leading the nation in progressive ideals and reforms. This is especially so with respect to women's rights. In 1848, the women's suffrage movement was born at the first Women's Rights Convention in Seneca Falls, New York, From that moment in time and continuing through today, the state has been the home of female leaders and visionaries, from Elizabeth Cady Stanton who initiated the first organized women's rights and women's suffrage movements, to Audre Lorde, a leading African-American poet and essayist who gave voice to women's issues, and Gloria Steinem, the journalist, author and activist These New Yorkers have served as role models for not only their generation but for every generation to come
Over the years, New Yolk has fallen behind in its role as a progressive. leader on women's rights. Today, statistics clearly show that women in New York State are not treated equally to men Study after study shows gender inequality in our communities where women face discrimination in housing because of their domestic violence victim status
The New York Women's Agenda will break down barriers that perpetuate discrimination and inequality based on gender. New York has served as a model for equality and fairness on several issues including women's rights. The New York Women's Agenda will return the State to its rightful place as a leader on women's equality.
Summary of Bills:
3) Attorney's Fees
This bill would amend Exec. L § 297 to provide for attorney's fees in employment or credit discrimination cases when sex is a basis of discrimination and retain the existing allowance for attorney's fees in housing and housing related credit cases. It would similarly amend Exec. L. § 296-a to permit the awarding of attorney's fees in credit discrimination cases when sex is a basis of discrimination in matters brought before the Department of Financial Services
These bills would impact existing protections that are available under the Executive Law.
Statement in Support:
* Allowing for the Recovery of Attorney's Fees in Employment and Credit and Lending Cases
Under existing law, attorney's fees for employment and credit and lending sex discrimination cases are not available even after the plaintiff proves discrimination at trial. As a result (a) many who are discriminated against but cannot afford to hire an attorney never seek redress. (b) those who hire an attorney on a contingency fee arrangement are not "made whole" for their losses because they must pay for their attorneys out of their recovery; and (C) some who cannot afford to hire an attorney, but who try to do so on a contingency basis, are unsuccessful because the case is either too small or too risky. This bill would allow for reasonable attorney's fees in employment and credit discrimination cases when sex is a basis of discrimination.
This bill has no budget implications for the State.
Effective Date: This bill would take effect 90 days after enactment.
STATE OF NEW YORK ________________________________________________________________________ 5874 2013-2014 Regular Sessions IN SENATE June 18, 2013 ___________Introduced by Sen. LITTLE -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the executive law, in relation to the provision of attorney's fees in cases of housing, employment or credit discrimi- nation; to amend the executive law, in relation to the awarding of reasonable attorney's fees 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 ALL cases of HOUSING DISCRIMINATION AND housing RELATED CREDIT discrimination
[only]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; AND WITH RESPECT TO A CLAIM OF EMPLOYMENT OR CREDIT DISCRIMINATION WHERE SEX IS A BASIS OF SUCH DISCRIMINATION, 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 ATTRIBUTABLE TO SUCH CLAIM TO ANY 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 hearing 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 substan- tially prevailing party for attorney's fees, except in a case in whichEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12051-01-3 S. 5874 2
the division is a party to the action or the proceeding in the divi- sion's capacity as an employer. IN CASES OF EMPLOYMENT DISCRIMINATION, A RESPONDENT SHALL ONLY BE LIABLE FOR ATTORNEY'S FEES UNDER THIS SUBDI- VISION IF THE RESPONDENT HAS BEEN FOUND LIABLE FOR HAVING COMMITTED AN UNLAWFUL DISCRIMINATORY PRACTICE. In order to find the action or proceeding to be frivolous, 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. Paragraph c of subdivision 7 of section 296-a of the executive law, as amended by chapter 632 of the laws of 1976, is amended to read as follows: c. If the superintendent finds that a violation of this section has occurred, the superintendent shall issue an order which shall do one or more of the following: (1) impose a fine in an amount not to exceed ten thousand dollars for each violation, to be paid to the people of the state of New York; (2) award compensatory damages to the person aggrieved by such violation; (3) FOR A CLAIM OF SEX DISCRIMINATION ONLY, AWARD REASONABLE ATTOR- NEY'S FEES ATTRIBUTABLE TO SUCH CLAIM TO ANY 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. IN NO CASE SHALL ATTORNEY'S FEES BE AWARDED TO THE DEPARTMENT, NOR SHALL THE DEPARTMENT BE LIABLE TO A PREVAILING PARTY FOR ATTORNEY'S FEES. IN ORDER TO FIND THE ACTION OR PROCEEDING TO BE FRIVOLOUS, THE SUPERINTENDENT 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. (4) require the regulated creditor to cease and desist from such unlawful discriminatory practices;
[(4)](5) require the regulated creditor to take such further affirma- tive action as will effectuate the purposes of this section, including, but not limited to, granting the credit which was the subject of the complaint. S 3. Severability clause. If any clause, sentence, paragraph, subdivi- sion, section or part of this act shall be adjudged by a court of compe- tent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its opera-S. 5874 3
tion to the clause, sentence, paragraph, subdivision, section or part thereof directly involved in the controversy in which such judgment shall have been rendered. It is hereby declared to be the intent of the legislature that this act would have been enacted even if such invalid provisions had not been included herein. S 4. This act shall take effect on the ninetieth day after it shall have become a law, and shall apply to actions commenced on or after such date.