New York State National Organization for Women v. Pataki Brief Amici Curiae

    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