Daniel Serrano, Esq.
Counsel to the Committee
Sandy Dillon
Legislative Policy Analyst
THE
COUNCIL
Report of the Governmental Affairs Division
Marcel Van Ooyen, Legislative Director
COMMITTEE ON GOVERNMENTAL OPERATIONS
Bill Perkins, Chair
April 7, 2005
Intro.
No. 512-A: By Council
Member Perkins, Barron, Boyland, Clarke, Foster, James, Palma, Sanders,
Seabrook, Vann, Gonzalez, Brewer, Quinn, Gerson, Jackson, Lopez, Comrie, Jr., Koppell, Liu, Martinez, Monserrate,
Rivera, Stewart, and Brewer.
TITLE: A Local Law to amend the administrative code of the City of New York in relation to eliminating discrimination in City operations by incorporating human rights principles.
Introduction
Today
the Committee on Governmental Operations will hear testimony regarding Intro.
No. 512-A, the New York City Human Rights Government Operations Audit Law (NYC
Human Rights G.O.A.L.). The purpose of this legislation is to eliminate racial
and gender discrimination in all city operations. The bill would codify the obligation on
the part of New York City to promote equality and prevent discrimination. It
would incorporate human rights principles and models into the municipal
framework, specifically principles contained within the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW), and the
Convention on the Elimination of All Forms of Racial Discrimination (CERD).
This human rights model would supplement the current civil rights model by
shifting the emphasis from reactive measures such as litigation (where one
generally must show an intentional violation of a right), to a proactive
approach that addresses both intentional and unintentional discrimination.
Intro. No. 512-A addresses discrimination by requiring that each city agency collect relevant data, analyze said data from a human rights perspective, identify problem areas, create an action plan for the resolution of said problems, and draft annual compliance reports to be included in the Mayor’s Management Report. The bill also provides for the creation of a Human Rights Task Force, made up of Mayoral agency heads and appointees, and empowered to enforce and implement the bill’s requirements. In addition, the bill provides for a Human Rights Advisory Committee, composed of the Comptroller and the Public Advocate (or their designees), one appointee each for the Borough Presidents, five appointees for the City Council, and a Chair to be appointed by the Mayor. The Advisory Committee would make recommendations to the Task Force and assist agencies in implementation of the bill.
While Intro. No. 512-A aims to increase and improve
collaboration between policy makers and affected communities, it does not
create any new positive rights. The NYC Human Rights G.O.A.L. is designed as an
assessment mechanism, intended to aid the city in the identification and
eradication of discrimination.
The Council and Mayor of the City of New York have already indicated that the City is opposed to discrimination and committed to its eradication.[1] Intro. No. 512-A builds upon the provisions that already exist in city law.
Overcoming Discrimination: The
Current Model
Presently, if a city resident encounters racial or gender discrimination at the hands of city government he or she may pursue a remedy via litigation.[2] Typically, this involves a claim under the Civil Rights Act of 1964, which in turn entails an analysis of whether the Equal Protection Clause has been violated.[3] While this approach has sometimes proven useful, many consider it insufficient for the purpose of addressing discrimination.[4]
The main criticism of litigation as the primary means for addressing discrimination is the doctrine of ‘discriminatory intent’ that characterizes equal protection analysis.[5] Under this doctrine, a finding of racial or gender discrimination requires a plaintiff to show that the government acted with the conscious intent to discriminate.[6] A showing that government action has resulted in discriminatory, or disparate impact is not enough.[7] Reformers argue that this is a prohibitively burdensome standard.[8] They note that it is “almost impossible” to prove that an individual (or group) within government acted with the specific intention to commit discrimination.[9]
Complicating matters is the growing belief that discrimination can occur without conscious intent.[10] Social cognition theorists argue that individuals have cognition biases that influence how they perceive and make decisions about other people.[11] In those cases, the argument goes, discriminatory assumptions and attitudes reside in the subconscious.[12]
Organizational sociologists have concluded that discrimination can actually be built into institutional practices and norms.[13] Individuals acting within such institutions act according to established standards and protocols, many of which may be predicated on discriminatory beliefs. As a result, these individuals also may discriminate without consciously evincing a discriminatory intent.[14]
In short, there is a growing concern that the discriminatory intent standard is insufficient for addressing ongoing gender and racial inequality because “it fails to reflect how a large part of discrimination actually occurs.”[15]
The Human Rights Approach
Intro 512-A aims to build upon our current civil rights models by shifting the paradigm and incorporating an international human rights framework into policymaking by City agencies. In particular, Intro 512-A incorporates many of the principles contained in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
CERD
CERD is an international treaty.[16] It was adopted by the General Assembly of the United Nations in 1966 and has been in force since 1969. It has been ratified by 128 countries around the world. The United States ratified it in 1997.
The purpose of CERD is to eliminate racial discrimination. Among the basic commitments made by the parties to the treaty is to not engage in acts or practices that discriminate against individuals, groups, or institutions on the basis of race; and to review government policies, and to amend or repeal laws and regulations which create or perpetuate racial discrimination.
Notably, CERD defines racial discrimination as any “distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”[17] CERD also provides for the creation of a Committee with oversight powers, and requires submission of periodic reports.
Thus, CERD goes further than the discriminatory intent doctrine in that it imposes an affirmative obligation on government to be proactive in its approach to racial discrimination; and it requires government to review and report its findings, and to amend or repeal its discriminatory policies. Most notably, under CERD, a discriminatory effect is as sufficient a cause for government remediation as a finding of a discriminatory intent.
CEDAW
CEDAW is also an international treaty.[18] It was adopted by the United Nations in 1979 and signed by President Jimmy Carter in 1980. Presidents Ronald Reagan and George H.W. Bush declined to seek ratification in the Senate. In 1994, President Bill Clinton recommended ratification. Since then, the Senate has failed to ratify the treaty. It is currently stalled in the Senate Foreign Relations Committee. To date, 179 nations have ratified the treaty. The United States remains the only industrialized nation that has not ratified the treaty, placing it in the same company as Iran, Sudan, Somalia and North Korea.[19]
The purpose of CEDAW is to eliminate discrimination against women. Among the basic commitments made by the parties to the treaty are the requirements to take action to prevent discrimination against women in various fields (such as the civil, political, economic, social and cultural realms); and the requirement to ensure a legal framework, including all laws, policies, and practices, to protect women against discrimination.
Like CERD, CEDAW defines discrimination against women as identifiable by having either a discriminatory “effect or purpose.”[20] CEDAW also created a Committee to oversee implementation of the treaty, and CEDAW also requires periodic progress reports.
Thus, like CERD, CEDAW goes further than the discriminatory intent doctrine by imposing an affirmative obligation on government to be proactive in its approach to discrimination against women, and also requiring government to review and report its findings. Most notably, under CEDAW, as under CERD, a discriminatory effect is as sufficient a cause for government intervention as a finding of a discriminatory intent.
Intro 512-A
As stated, the purpose of the New York City Human Rights G.O.A.L. is to eliminate gender and race discrimination in city operations. The bill aims to do so by applying a human rights model, i.e. by codifying an affirmative, proactive obligation on the part of city government to identify and eliminate discrimination; instituting active oversight and periodic progress reports; and establishing that government policies or regulations that evince a discriminatory intent or produce a discriminatory effect require reform. What follows is a summary of relevant provisions of the bill.
Policy.[21] This section states that the bill aims to incorporate a human rights model, and provides principles and obligations that characterize this approach. These include that City government must recognize and address the intersectionality and interdependence of human rights (i.e. the fact that sometimes the full exercise of a given right is contingent upon the availability of other rights, and that race and gender interact with each other, as well as with other forms of discrimination); that City government must take affirmative measures to eliminate discrimination, including systemic review of operations, policies and laws for discriminatory effect; that City government must work to enhance community participation in problem solving; and that City government operations must be transparent, so that the public may be well-informed.
Definitions.[22] Notably, the bill’s definition of “discrimination” establishes that for the purposes of this chapter, discrimination may be intentional or unintentional. Also “City Entity” is defined as any City agency paid for in whole or in part by the City treasury, including certain private entities.
Annual Reporting.[23] The bill requires each City Entity to report its compliance annually in the Mayor’s Management Report.
Data Collection.[24] The bill requires periodic review of data collection and reporting policies. It also requires that data be disaggregated by race and gender and other characteristics.
Human Rights Education.[25] The bill requires City Staff to be trained regarding the human rights-based approach, and that the City make efforts to educate the public, as well.
Local Human Rights Audit, Analysis and Action Plan.[26] The bill requires all City Entities to conduct an audit that includes current data collection practices, measures taken to promote equality and prevent and eliminate discrimination, and procedures and mechanisms for soliciting public input regarding operations of the given Entity.
The bill also requires each City Entity designated by the Task Force, and with the advice of the Advisory Committee, to develop and conduct a human rights analysis of discrimination in its operations, including policies, practices, programs, budget allocations, delivery of service, and employment practices.
Finally, the bill requires each City Entity to produce an action plan for addressing any discrimination that it identifies in its human rights analysis.
Other measures in this section include scheduling provisions; community input; requirements that reports be in writing; the proviso that the human rights analyses and action plans shall not be admissible in litigation unrelated to the bill itself; and a general scope of fields to be addressed, where relevant, by the analyses and action plans.
Human Rights Task Force.[27] The bill establishes a Task Force to include the Commissioners of the Department of Citywide Services (DCAS) and the Commission on Human Rights, and the Chairperson of the Equal Employment Practices Commission, or their designees, plus five Mayoral appointees, to serve without compensation. The function of the Task Force is to monitor and enforce implementation of the bill, and to foster public dialogue on the provisions of the bill. Powers and duties of the Task Force include developing guidelines, setting timelines, holding hearings, soliciting public comment, disseminating information, making recommendations, making rules, training and educating City officials regarding the chapter, bringing lawsuits, submitting an annual written report, fostering public dialogue, and hiring consultants and staff where necessary. The Task Force is empowered to issue reports, conduct public hearings or engage in any other appropriate action to enforce the provisions of the chapter.
Human Rights Advisory Committee.[28] The bill establishes an Advisory Committee to include the City Comptroller and Public Advocate, or their designees, one appointee each for the Borough Presidents, five appointees by the City Council, and a Chair to be appointed by the Mayor, all to serve without compensation. The function of the Advisory Committee is to advise on implementation of the chapter, upon request by the Task Force, to provide technical and substantive support to City Entities undertaking the Human Rights Analysis and developing an Action Plan, and to report to the Task Force on the Committee’s progress. Powers and duties of the Committee include advising the Task Force, assisting City Entities in implementing the chapter, and hiring staff and consultants as needed.
Application.[29] The bill applies to all City Entities, and private entities to the extent that they provide City services and perform city functions.
Conclusion
Intro 512-A, the New York City Human Rights G.O.A.L. is a
bill that aims to eliminate race and gender discrimination in City operations
by incorporating human rights principles as contained within the Convention on
the Elimination of All Forms of Racial Discrimination (CERD) and the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW). The hallmarks of this approach are an
affirmative obligation on the part of government to identify and eliminate
discrimination by government, active oversight and reporting, and recognition
that a discriminatory effect of government policy requires remedial action.