New York State National Organization for Women v. Pataki Brief Amici Curiae
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July 30, 1999

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Brief Collection, LDF Court Filings. New York State National Organization for Women v. Pataki Brief Amici Curiae, 1999. 7bacd176-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3298bbaf-be66-4907-a174-bed868f6800f/new-york-state-national-organization-for-women-v-pataki-brief-amici-curiae. Accessed April 27, 2025.
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X) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, NEW YORK CITY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, WESTCHESTER COUNTY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, on behalf of themselves, their members, and all others similarly situated, and CLARICE SEEGARS, BERNADETTE THOMAS, DELLIE BRITT, and JANE DOE, as Administratrix, on behalf of themselves, and all others similarly situated., Plaintiffs-Intervenors-Appellees-Cross-Appellants, v. GEORGE W. PATAKI, individually and as Governor of the State of New York, MARIO CUOMO, EDWARD MERCARDO, individually and as Commissioner of the Division of Human Rights of the Executive Department of New York State, and MARGARITA ROSA Defendants-Appellants-Cross-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF AMICI CURIAE OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, NATIONAL EMPLOYMENT LAWYERS ASSOCIATION/NEW YORK, CENTER FOR CONSTITUTIONAL RIGHTS, PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC., THE NATIONAL BAR ASSOCIATION, and NOW LEGAL DEFENSE AND EDUCATION FUND IN SUPPORT OF PLAINTIFFS-INTER VENORS-APPELLEES-CROSS-APPELLANTS AND SI IPPORTING AFFIRMANCE Elaine R. Jones Norman J. Chachkin Charles Stephen Ralston NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street Suite 1600 New York, New York 10013 (212) 965-2200 Counsel for NAACP Legal Defense & Educational Fund, Inc. Counsel continue on inside of cover. Margaret Fung Kenneth Kimerling Asian American Legal Defense & Educational Fund 99 Hudson Street New York, NY 10013 (212) 219-3360 Counsel for Asian American Legal Defense and Education Fund Nancy Chang Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6420 Counsel for Center for Constitional Rights Herbert Eisenberg Davis & Eisenberg 377 Broadway, 9th Floor New York, NY 10013 Counsel for National Employment Lawyers As sedation/New York Yolanda Wu NOW Legal Defense and Education Fund 395 Hudson Street, 5th Floor New York, NY 10014 (212) 925-6635 Counsel for N O W Legal Defense and Education Fund Juan Figueroa Puerto Rican Legal Defense and Education Fund 99 Hudson Street New York, NY 10013 (212) 219-3360 Counsel for Puerto Rican Legal Defense and Education Fund UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 98-9040 (L); 98-9069 (X) NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, NEW YORK CITY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, WESTCHESTER COUNTY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, on behalf of themselves, their members, and all others similarly situated, and CLARICE SEEGARS, BERNADETTE THOMAS, DELLIE BRITT, and JANE DOE, as Administratrix, on behalf of themselves, and all others similarly situated, GEORGE W. PATAKI, individually and as Governor of the State of New York, MARIO CUOMO, EDWARD MERCARDO, individually and as Commissioner of the Division of Human Rights of the Executive Department of New York State, and MARGARITA ROSA, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK DISCLOSURE STATEMENT PURSUANT TO 26.1 FRAP All of the Amici are not-for-profit organizations. The corporate not-for- profit amici have no parent corporations, stock, or stock holders. Plaintiffs-Intervenors-Appellees-Cross-Appellants, -against- Defendants-Appellants-Cross-Appellees. CHARLES STEPHEN RALSTON Counsel for Amici Curiae UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 98-9040 (L); 98-9069 (X) NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, NEW YORK CITY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, WESTCHESTER COUNTY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, on behalf of themselves, their members, and all others similarly situated and CLARICE SEEGARS, BERNADETTE THOMAS, DELLIE BRITT, and JANE DOE, as Administratrix, on behalf of themselves, and all others similarly situated, Plaintiffs-Intervenors-Appellees-Cross-Appellants, -against- GEORGE W. PATAKI, individually and as Governor of the State of New York, MARIO CUOMO, EDWARD MERCARDO, individually and as Commissioner of the Division of Human Rights of the Executive Department of New York State, and MARGARITA ROSA, Defendants-Appellants-Cross-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CERTIFICATE OF COMPLIANCE PURSUANT TO FRAP 32(a)(7) I submit this certificate pursuant to Federal Rule of Appellate Procedure 32(a)(7). The accompanying brief has been prepared using 14 pt. Dutch Roman typeface. Relying on the word count of the word processing system used to prepare the accompanying brief, I hereby represent that Amici Curiae's brief contains 3,914 words, and is therefore within the 7,000-word TABLE OF CONTENTS DISCLOSURE STATEMENT PURSUANT TO 26.1 FRAP CERTIFICATE OF COMPLIANCE PURSUANT TO FRAP 32(a)(7) TABLE OF AUTHORITIES ........................................................................ ii INTEREST OF THE AMICI C U R IA E ..................................................... 2 I. IN TRO D U CTIO N ................................................................................ 7 II. CONGRESS’S PURPOSE IN REQUIRING THE EXHAUSTION OF STATE R E M E D IE S ....................................... 7 CONCLUSION .............................................................................................. 16 CERTIFICATE OF S E R V IC E .................................................................... 18 l TABLE OF AUTHORITIES Cases: Pages: Carey v. New York Gaslight Club, Inc., 598 F.2d 1253 (2nd Cir. 1979) ....................................................................................... 14 New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980 )...................... 14 Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278 (2nd Cir. 1987) ....................................................................................... 14 Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1 9 8 3 )........................ .............. 15 Statutes and Rules: Pages: 42 U.S.C. § 2000e-5 .............................................................................................. 42 U.S.C. § 2000e-8(b) .......................................................................................10 42 U.S.C. § 2000e-9 .............................................................. 8 Rule 29(a), Fed. R. App. Proc.......................................................................... 2 Title VII of the Civil Rights Act of 1964 .................................... 7-10, 12-15 Other Authorities: Pages: 110 Cong . Rec . 1635, 1636 (1964) ............................................................... 10 110 Cong . Rec. 2566 (1964 )........................................................................... 13 110 Cong . Rec. 7214 (1964 )........................................................................... 8 110 Cong. Rec. 7216 (1964 )........................................................................... 9 ii Pages: 110 Cong. Rec. 10520 (1 9 6 4 )........................................................................ 12 110 Cong. Rec. 12595 (1964) ........................................................................ 11 110 Cong. Rec. 12724-25 (1964).......................... ......................................... 8 H. Rep. No. 1370, 87th Cong., 2d Sess. 1962 ......................................... 9. 13 H. Rep. 92-238, 92nd Cong. 1st Sess. (1971)................................................ 13 in 98-9040 (L); 98-9069 (X) U N ITED STATES CO U RT OF APPEALS FO R TH E SECOND CIRCU IT NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, NEW YORK CITY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, WESTCHESTER COUNTY CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN, on behalf of themselves, their members, and all others similarly situated, and CLARICE SEEGARS, BERNADETTE THOMAS, DELLIE BRITT, and JANE DOE, as Administratrix, on behalf of themselves, and all others similarly situated, Plaintiffs-Intervenors-Appellees-Cross-Appellants, -against- GEORGE W. PATAKI, individually and as Governor of the State of New York, MARIO CUOMO, EDWARD MERCARDO, individually and as Commissioner of the Division of Human Rights of the Executive Department of New York State, and MARGARITA ROSA, Defendants-Appellants-Cross-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF AMICI CURIAE OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND. NATIONAL EMPLOYMENT LAWYERS ASSOCIATION/NEW YORK, CENTER FOR CONSTITUTIONAL RIGHTS, PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC., THE NATIONAL BAR ASSOCIATION and NOW LEGAL DEFENSE AND EDUCATION FUND IN SUPPORT OF PLAINTIFFS- INTERVENORS-APPELLEES-CROSS-APPELLANTS AND SUPPORTING AFFIRMANCE IN TEREST OF TH E AM ICI CU RIA E All parties have consented to the filing of this brief pursuant to Rule 29(a), Fed. R. App. Proc. The Amici Curiae are organizations involved in the enforcement of civil rights in general and in the laws against employment discrimination in particular. As such, they are concerned that persons claiming unlawful discrimination have available to them the widest possible range of remedies, including effective and meaningful administrative remedies by state agencies such as the New York State Division on Human Rights. 1. The NAACP Legal Defense and Educational Fund. Inc. The NAACP Legal Defense and Educational Fund, Inc., is a non-profit corporation organized under the laws of the State of New York. It was formed to assist African-American citizens to secure their rights under the Constitution and laws of the United States. For many years, Legal Defense Fund attorneys have represented parties in litigation before the Supreme Court of the United States and other federal courts in cases involving a variety of race discrimination issues, including many cases involving Title VII of the Civil Rights Act of 1964. E.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Franks v. Bowman Transportation Co., 424 U.S. 747 (1976); Bazemore v. Friday, 478 U.S. 385 2 (986). 2. The Asian American Legal Defense and Education Fund. The Asian American Legal Defense and Education Fund ("AALDEF"), founded in 1974, is a nonprofit organization that protects the legal rights of Asian Americans. AAEDEF has represented the Asian American community in numerous cases and administrative proceedings including claims under the New York State Human Rights Law. For many Asian Americans who are discriminated against and unable to afford counsel, the filing of administrative charges is their only means to remedy that discrimination. The delay in processing and resolving complaints by the New York State Division of Human Rights is a constant and continuing problem. For many Asian Americans, these delays effectively deny them any relief for their claims of discrimination. 3, The National Employment Lawyers Association National Employment Lawyers Association/New York ("NELA/NY") is the New York Chapter of the National Employment Lawyers Association (NELA), a national bar association dedicated to the vindication of individual employees’ basic rights in employment-related disputes. NELA is the nation’s only professional organization comprised exclusively of lawyers who represent 3 individual employees, and its more than 3,500 member attorneys (in 49 state chapters) are expert in issues of employment discrimination, employee benefits, the rights of union members to fair representation, and other issues arising from the employment relationship. NELA/NY has filed briefs in this Court and the New York State Court of appeals in cases presenting important questions of antidiscrimination law. The aim of this participation has been to cast light not only on the subtleties of the legal issues presented but also on the practical effects on the lives of working people that such legal rules produce. 4. The Center for Constitutional Rights. The Center for Constitutional Rights is a progressive law, education and advocacy organization that is dedicated to the advancement of the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. The Center, which grew out of the civil rights movement in the Deep South in the 1960’s, has long been in the forefront of racial, social, and economic justice litigation. The New York State Division of Human Rights’ egregious delays in the processing and resolution of its pending claims is a matter of tremendous concern to the Center because these delays have prevented countless claimants from successfully prosecuting 4 m eritorious claims o f unlawful discrimination. 5. The Puerto Rican Legal Defense and Education Fund. Inc. The Puerto Rican Legal Defense and Education Fund, Inc.. ("PRLDEF") is a national civil rights litigation organization founded in 1972. Its mission is to further and protect the civil rights of Puerto Ricans and other Latinos. PRLDEF has initiated hundreds of cases to combat discrimination in significant areas such as education, housing, employment, voting and language rights. Many of these cases were brought under Title VII of the Civil Rights Act of 1964 as well as the New York State Human Rights Law. It is of critical importance to PRLDEF that its constituency have the opportunity to assert their discrimination claims and to be afforded a proper and timely remedy. 6. NOW Legal Defense and Education Fund. NOW Legal Defense and Education Fund ("NOW LDEF") is a leading national non-profit civil rights organization that performs a broad range of legal and educational services in support of women’s efforts to eliminate sex- based discrimination and secure equal rights. NOW LDEF was founded in 1970 by leaders of the National Organization for Women as a separate organization. A major goal of NOW LDEF is the elimination of barriers that 5 deny women economic opportunities, such as employment discrimination. In furtherance of that goal, NOW LDEF litigates cases to secure full enforcement of laws such as Title VII of the Civil Rights Act of 1964. including Faragher v. City o f Boca Raton, 118 S. Ct. 2275 (1998); Bowman v. Heller, 420 Mass. 517 (Ma. 1995), cert, denied, 516 U.S. 1032 (1995); and Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991). NOW LDEF filed amicus briefs in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Oncale v. Sundowner Offshore Services, 118 S. Ct. 998 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); and Landsgraf v. USI Film Prods., 511 U.S. 244 (1944). 6 INTRODUCTION The specific issue before the Court on the cross-appeals — whether the district court erred in its rulings on qualified immunity for the defendant public officials — will be discussed in detail by the parties, and amici will not duplicate that discussion here. Rather, we wish to show that the right to state administrative enforcement of an individual’s claim of employment discrimination is indeed essential in light of the Congressional purpose in requiring that claims under Title VII be first submitted to state agencies before they may be pursued before the Equal Employment Opportunity Commission or filed in federal court. The considerations that led Congress to enact this requirement lead to the conclusion that the systematic failure of a state agency to provide meaningful remedies can and should be addressed by the federal courts. II. CONGRESS’S PURPOSE IN REQUIRING THE EXHAUSTION OF STATE REMEDIES Congress had a number of concerns when it enacted Title VII of the Civil Rights Act of 1964 that led it to require that available state administrative remedies be pursued before federal remedies could be resorted to. First, questions of federalism led to the conclusion that existing state anti- I. 7 discrimination laws and remedies should not be overridden.1 Thus, it was made explicit that Title VII did not pre-empt existing state laws that were not inconsistent with it,2 and that state administrative remedies could be resorted to if a complainant so chose. Second, there was great concern that the new EEOC would quickly be swamped with complaints and. given its national scope, would not be able to handle all of the potential cases. Requiring initial resort to existing state fair employment practices commissions could significantly reduce the EEOC’s potential caseload.3 Third, it was hoped that Senator Humphrey explained: First, we were concerned that States and localities be afforded every opportunity to resolve these difficult problems of racial justice by means of their own agencies and instrumentalities. In this respect it is perfectly proper to describe the substitute package as a "States rights bill," and. I may say, a "States responsibilities bill." 110 Cong. Rec. 12724-25 (1964). 242 U.S.C. § 2000e-9. 3The Clark-Case memorandum, submitted by the Senate managers of Title VII, stated: In point of fact, the task we are assigning to the Commission is so immense, there can be little doubt that the Commission will from sheer necessity avail itself to the fullest of the provisions of section 708(b) [provision in the original bill for deferral to effective state agencies]. 110 Cong. Rec. 7214 (1964). 8 states or localities without EEO laws would be encouraged to enact their own, thus maximizing the remedies available to victims of discrimination.4 Of central concern was that, however Title VII was structured and whatever the relationship between federal and state EEO laws, victims of discrimination have in fact speedy and effective remedies against what was rightly perceived to be a national problem of the utmost importance. Thus, a central issue was whether the EEOC should have cease and desist powers similar to those of the National Labor Relations Board and most state FEPCs, and or whether the emphasis should be on conciliation and prompt resolution by agreement, followed, if necessary, by litigation in federal court.5 The latter position prevailed, with its proponents pointing to the experience of state agencies of resolving most complaints through conciliation.6 4Deferral to effective state agencies "will induce the States to enact good laws and enforce them . . . ." 110 Cong. Rec. 7216 (1964). 5See, H. Rep. 1370, pp 6-7 (1962) (Report of the House Committee on Education and Labor on a predecessor bill, the Equal Employment Opportunity Act of 1962). 6It is ironic that Congressman Reid of New York, formerly the chair of the New York State Commission for Civil Rights, cited that Commission’s record from 1945 to 1963 as an model for the expeditious and effective resolution of complaints. As of December 31, 1963, only 414 of the 8,373 EEO complaints filed during that period remained open. Of those closed, 3,218 had resulted in the adjustment of discriminatory practices or policies, mostly through conciliation. It was through the effective enforcement of the law that would 9 The specific requirement that available state remedies be exhausted first was introduced in the Senate as part of the Dirksen substitute to the House bill. The House version of Title VII had provided that when the EEOC determined that a particular state agency both had "effective power to eliminate and prohibit discrimination" and was "effectively exercising such power," then it would defer to such an agency as long as it both had and effectively exercised that power.7 The Dirksen substitute added what is now 42 U.S.C. § 2000e-5(b) and (c), requiring that wherever a state or local FEPC existed, recourse must be had to it for at least 60 days before the EEOC could entertain a complaint under Title VII. Although the Dirksen substitute was accepted by the Senate managers of Title VII, grave concern was expressed over its possible deleterious impact on the effective enforcement of the Act. Particularly striking with regard to the issue in the present case were the comments of Senator Clark of Pennsylvania, one of the floor managers: After a good deal of careful thought, I have concluded that the weakening changes [in the Dirksen substitute] are not so great make "equality of opportunity and equal protection of the laws a present reality—not keep it a pious principle; nor a future hope." 110 CONG. Rec 1635, 1636 (1964). 7This provision is now found in 42 U.S.C. § 2000e-10(b). 10 The changes I most deplore are, first, the subordination of Federal power to the localities and the States in connection with the enforcement of equal job opportunity . . . . It is true that eventually, after he has applied for relief under the State law or local ordinance, he can then turn to proceedings before the Federal [EEOC]. But this might take a considerable period of time, if local proceedings are strung out as they could be by an unsympathetic administration. In many a case I fear that the end result will be that justice delayed is justice denied, and the unfortunate individual would never get the job to which he was entitled because the employment situation could well have changed in the meantime. 110 Cong. Rec. 12595 (1964). Throughout the congressional debates concerns were expressed over the efficacy and speed of the various administrative processes that were being considered. Thus, Senator Dirksen, in explaining the substitute he was to introduce, discussed the balance he hoped to achieve between the interest of the states in enforcing their own EEO laws and the interest of individual complainants: . . . they all seek a workable and equitable civil rights bill but they are mindful of the steady and deeper intrusion of the Federal power in fields where the problem is essentially State and local in character. . . . Surely we can develop language which will assure the States on this point, assure individual complainants that they will have fair and expeditious consideration of their grievances and still retain sufficient authority in the Federal Commission to carry as to make it im possible to achieve the objectives o f the title, although they certainly make it more difficult. 11 110 Cong. Rec. 8193 (1964); emphasis added. Indeed, it was even contemplated that in states that had FEPCs, the enforcement of the anti- discrimination laws would be done primarily by the state agency, and that "title VII will have but little effect" in those states.8 In sum, the speedy and effective enforcement of existing employment discrimination laws by state agencies was uniformly seen as crucial to the enforcement of Title VII. It was the clear intent of Congress that the ability of complainants to have meaningful resolutions of complaints was to be both independent of their right to bring an action under Title VII, and integral to the attack on employment discrimination. Through this coordinated administrative enforcement scheme, Congress clearly hoped to avoid the inundation of the federal courts with EEO cases. The House report on the Equal Employment Opportunity Act of 1962 Memorandum by Senator Carlson (D., Kan.), 110 Cong . Rec. 10520 (1964): . . . Since Kansas already has a fair employment law barring discrimination on account of race, color, religion, national origin or ancestry, title VII would have little impact in the state. . . . Thus, it is to be expected that discrimination in employment would be handled by State officials under the State law and that title VII will have but little effect within Kansas. forward the purposes and objectives o f this title o f the bill. 12 emphasized the importance of the conciliation of complaints, pointing to the record of state FEPCs. Thus, even though the 1962 Act would not give the EEOC cease and desist powers, but would require an action in federal court, the report assured that. "The committee does not feel that the procedure of this -section will unduly burden the Federal courts," because the administrative process would resolve most complaints. H. Rep. No. 1370, 87th Cong., 2d Sess. 1962, pp. 6-7. Similarly, the 1964 Act was amended in the House to make it certain that the Commission could not file an action in court without first attempting to conciliate administratively. 110 CONG. Rec. 2566 (1964). See id., (statement of,Rep. Roosevelt, in discussion of the right of the complainant to bring an action, "We do not wish to flood the courts.").9 The argument advanced by the defendants here, that there has been no deprivation because, ultimately, a victim of discrimination can file in federal court even if the Division utterly fails to process her complaint, would subvert Congress's intent to minimize the burden on the courts. As the Supreme 9Concern with overburdening the federal courts was one of the main reasons that the House proposed to amend Title VII in 1972 to give the EEOC cease-and-desist power. The proposal was ultimately rejected, but it was hoped that giving the EEOC itself authority to bring lawsuits if conciliation failed would result in more complaints being settled administratively and few coming to the courts. H. Rep. 92-238, 92nd Cong., 1st Sess. pp. 8-11 (1971). 13 Court noted in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 66, n.6 (1980) in holding that attorneys’ fees were awardable for work done in state administrative proceedings that were a prerequisite to a Title VII action: The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress’ intent to encourage full use of state remedies. See also, Carey v. New York Gaslight Club, Inc., 598 F.2d 1253, 1257 (2nd Cir. 1979) ("Thus, state human rights agencies play an important role in the enforcement process of Title VII, since they afford a chance to resolve a discrimination complaint in accordance with federal policy before such a complaint reaches the federal courts"); Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2nd Cir. 1987) (following Carey in an ADEA case since Congress intended that plaintiffs utilize state administrative proceedings "before commencing an action in federal court"). Not only would the position of the defendants — which boils down to nothing less than "it doesn’t matter that New York’s system is worthless, you can always go to the EEOC" — cast an undue burden on the federal courts, it would undermine the enforcement scheme as a whole. Thus, the Supreme Court rejected arguments that the federal Employee Retirement Income 14 Security Act of 1974 pre-empted the New York Human Rights Law because such a result would "impair Title VII to the extent that the Human rights law provides a means of enforcing of Title VII’s commands." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 102 (1983). Since the EEOC would not be able to refer a claim that a benefit plan was discriminatory to the State Division: . . . those claims that would have been settled at the state level would require the EEOC’s attention. . . . The EEOC’s options for coping with this added burden, barring discoveries of reserves in the agency budget, would be to devote less time to each individual case or to accept longer delays in handling cases. The inevitable result of complete pre-emption, in short, would be less effective enforcement of Title VII. 463 U.S. at 102, n. 23. Most important, as has been shown to be the case here, without the effective administrative process that Congress intended, many victims of discrimination would be left without any practical remedy whatsoever because they lack the resources to bring an action in federal court. Amici can attest to their experiences in counselling many individuals with potentially valid EEO complaints who have been unable to obtain any consideration of their claims, let alone one that is "fair and expeditious," because of the failure of administrative agencies, including the New York Division on Human Rights, to provide any meaningful remedy and because of the prohibitive cost of 15 bringing and maintaining a court action.10 The present case presents the possibility for correcting the nonfeasance of the Division, and thereby, in the words of Rep. Ogden Reid, making "equality of opportunity and equal protection of the laws a present reality" rather than "a pious principle; [or] a future hope."11 CONCLUSION For the foregoing reasons, the decision of the district court on the issue of the importance of the right to a speedy and effective state remedy was correct, and should not be overruled. 1()The number of requests for assistance received by amici far exceeds their resources available to take on cases. A number of amici, in fact, are able to provide representation only in class actions, and handle few if any individual EEO cases at the trial court level. 11 See n. 6, supra. 16 Respectfully submitted, Elaine R. Jones Norman J. Chachkin Charles Stephen Ralston NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street Suite 1600 New York, New York 10013 (212) 965-2200 Counsel for NAACP Legal Defense & Educational Fund, Inc. Nancy Chang Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6420 Counsel for Center for Constitutional Rights Yolanda Wu NOW Legal Defense and Education Fund 395 Hudson Street, 5th Floor New York, NY 10014 (212) 925-6635 Counsel for NOW Legal Defense and Education Fund Margaret Fung Kenneth Kimerling Asian American Legal Defense & Educational Fund 99 Hudson Street New York, NY 10013 (212) 219-3360 Counsel for Asian American Legal Defense and Education Fund Herbert Eisenberg Davis & Eisenberg 377 Broadway, 9th Floor New York, NY 10013 Counsel for National Employment Lawyers Association/New York Juan Figueroa Puerto Rican Legal Defense and Education Fund 99 Hudson Street New York, NY 10013 (212) 219-3360 Counsel for Puerto Rican Legal Defense and Education Fund 17 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing BRIEF AMICI CURIAE, have been served by depositing same in the United States mail, first class postage prepaid, on this 30th of July, 1999, addressed to the following: Eliot Spitzer Attorney General Adam L. Aronson Assistant Attorney General Robert A. Forte Assistant Attorney General Office of the Attorney General of the State of New York 120 Broadway New York, NY 10271 David Raff, Esq. Robert L. Becker, Esq. Raff & Becker, LLP 59 John Street, 6th Floor New York, NY 10038 18