Billingsley v. Clayton Brief for Appellants

    New York County Clerk’s Index No. 111261-98

COURT OF APPEALS
STATE OF NEW YORK

SARA LEVIN, M AGGIE JONES, and GILA W ILD FIRE, 
in her capacity as Secretary/T reasurer of EAGLB, the 
Einstein Association of Gays, Lesbians, and Bisexuals,

Plaintiffs-Appellants,

-against-

YESHIVA UNIVERSITY and THE ALBERT EINSTEIN 
CO LLEG E O F M EDICINE of YESHIVA UNIVERSITY

Defendants-Respondents.

M EMORANDUM OF LAW BY AM ICI CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., TH E ASIAN AMERICAN 

LEGAL DEFENSE & EDUCATIONAL FUND, THE DISABILITY RIGHTS 
EDUCATIONAL & DEFENSE FUND, INC., THE EM PLO YM EN T LAW  CENTER, THE 
NATIONAL ASIAN PA CIFIC AMERICAN LEGAL CONSORTIUM , THE NATIONAL 

EM PLOYM ENT LAW PR O JEC T, THE NATIONAL EM PLO YM EN T LAWYERS 
ASSOCIATION/NEW  YORK, THE NATIONAL W O M EN ’S LAW  CENTER, THE 

PUERTO RICAN LEGAL DEFENSE & EDUCATIONAL FUND

Elaine R. Jones 
Theodore M. Shaw 
Norman J. Chachkin 
Robert H.Stroup 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street. 16:h FI. 
New York, NY 10013 
212 965-2200 
Attorneys for Amici Curiae



TABLE OF CONTENTS

TABLE OF A UTHORITIES................................................................................................................ ii

PRELIMINARY STA TEM EN T...........................................................................................................1

STATEMENT OF INTEREST OF AMICI C U R IA E..................................... ...................................2

STATEMENT OF FACTS .................................................................................................................... 2

A RGU M EN T.................................................................................................. ......................................... 2

I. THE APPELLATE DIVISION’S DISPARATE IMPACT STANDARD IS
CONTRARY TO THIS COURT’S OWN PRECEDENT AS WELL AS THE 
FEDERAL LAW UPON WHICH THE DISPARATE IMPACT CLAIM IS 
MODELED .................................................................................................................... 2

A. The Appellate Division Decision Fails to Apply Federal Judicial Authority
Defining Disparate Impact in a Manner that Requires Examination of 
Actual Effect on Individuals Subject to a Law or Practice Rather Than its 
Facial S co p e ....................................................................................................... 2

B. This Court Has Applied Federal Disparate Impact Standards While Rejecting
Reasoning Virtually Identical to that Employed by the Appellate Division 
Here ......................................................................................................................6

CONCLUSION ........................................................................................................................................8

ATTACHMENT A

CERTIFICATE OF SERVICE

l



TABLE OF AUTHORITIES

FEDERAL CASES

Albemarle Paper Co. v. Moody,
422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975)...................................................4

Burger v. Litton Industrial Inc.,
No. 91 Civ. 0918, 1996 U.S. Dist. LEXIS 5560 (S.D.N.Y. Apr. 24, 1996) ................ 6

Connecticut v. Teal,
457 U.S. 440, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982)............................................  3, 4

Dothard v. Rawlinson,
433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977)..............................................  3, 4

EEOC v. Local 638,
81 F.3d 1162 (2d Cir. 1996)................................................................................................ 5

Foray v. Bell Atlantic,
56 F. Supp. 2d 327 ................................................................................................................2

Griggs v. Duke Power Co.,
401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971)................................................  3, 4

Huntington Branch, NAACP v. Town o f Huntington,
844 F.2d 926 (2d Cir. 1988)............................................................................................  5, 7

International Brotherhood o f Teamsters v. United States,
431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977)...................................................3

Sobel v. Yeshiva University,
839 F.2d 18 (2d Cir. 1988)...................................................................................................5

Waisome v. Port Authority o f N.Y. & N.J.,
948 F.2d 1370 (2d Cir. 1991).............................................................................................. 5

STATE CASES

Campaign for Fiscal Equity v. New York,
86 N.Y.2d 307, 655 N.E.2d 661 (1995).............................................................................7

u



Edmond v. IBM,
91 N.Y.2d 949, 694 N.E.2d 438, 671 N.Y.S.2d 437 (1998)...........................................8

Ferrante v. American Lung Association,
90 N.Y.2d 623, 687 N.E.2d 1308, 665 N.Y.S.2d 25 (1997)...........................................6

Hudson View Properties v. Weiss,
59 N.Y.2d 733, 450 N.E.2d 234, 463 N.Y.S.2d 428 (1983)...........................................2

Leon v. Martinez,
84 N.Y.2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972 (1994)............................................ 8

Pace College v. Commission on Human Rights,
38 N.Y.2d 28, 339 N.E.2d 880, 377 N.Y.S.2d 471 (1975)............................................. 6

Matter o f Sontag v. Bronstein,
33 N.Y.2d 197, 306 N.E.2d 405, 351 N.Y.S.2d 389 (1973)...........................................6

State Division o f Human Rights v. Kilian Manufacturing Corp.,
35 N.Y.2d 201, 318 N.E.2d 770, 360 N.Y.S.2d 603 (1974)...........................................6

State o f New York v. New York City Transit Authority,
59 N.Y.2d 343, 452 N.E.2d 316, 465 N.Y.S.2d 502 (1983)...........................................6

STATE AND LOCAL LAWS

New York City Administrative Code. Section 8-107 .......................................................................  1

New York Human Rights Law, N.Y. Exec. Law § 296 ("Human Rights Law") ............................1

iii



PRELIMINARY STATEMENT

In this action, plaintiffs raised legal claims under various State and City laws 

challenging Yeshiva University and Albert Einstein College of Medicine’s practices regarding 

student housing for medical students. The First Amended Complaint (“Complaint”) alleged, inter 

alia, violations of the New York Human Rights Law, N. Y. Exec. Law § 296 (“Human Rights Law”) 

and the Administrative Code of the City of New York § 8-107 (“Administrative Code”). The 

Complaint alleged that the defendants had given preferences to heterosexual medical students that 

were not available to lesbian and gay male medical students. (Complaint, fflf 10-17) (A37-A39). In 

addition to claiming overtly discriminatory practices under the Human Rights Law, the Complaint 

also alleged that the practice of requiring marriage to a medical student as a requisite to permitting 

partners who were non-students to live in university housing “has an adverse, disparate impact on 

lesbians and gay men because lesbians and gay men are not able to marry.” (Complaint, ̂ |21) (A40). 

The “Seventh Claim for Relief ’ alleged that defendants’ practice violated § 8-107(5) and (17) o f the 

Administrative Code. Section 17 is the Administrative Code’s express prohibition against policies 

or practices that result in a disparate impact to the detriment of any protected class. And, Section 

5 makes lesbians and gay men members of a protected class under the Administrative Code’s 

housing discrimination provisions.

The trial court dismissed the Complaint in its entirety for failure to state a claim and

the Appellate Division affirmed. This brief addresses the legal error in the Appellate Division’s

decision affirming dismissal of the disparate impact claim. The Appellate Division explained its

affirmance o f that dismissal in a single sentence:

Plaintiffs also failed to establish that defendants’ policy had a 
disparate impact on homosexuals since it had the same impact on



non-married, heterosexual medical students as it had on non-married 
homosexual medical students (see, Hudson View Props, v. Weiss, 
supra; Foray v. Bell Atl., 56 F. Supp. 2d 327).'

(A59). The Appellate Division’s statement of law is incorrect, and this Court should reverse.

STATEMENT OF INTEREST OF AMICI CtJRIAE

A statement describing the interests o f each of the amici curiae is attached hereto as Attachment A.

STATEMENT OF FACTS

The amici curiae rely upon, and incorporate by reference, the statement o f facts 

presented by the Plaintiffs-Appellants Sara Levin, et al.

ARGUMENT

I. THE APPELLATE DIVISION’S DISPARATE IMPACT STANDARD IS CONTRARY TO 

THIS COURT’S OWN PRECEDENT AS WELL AS THE FEDERAL LAW UPON WHICH 

THE DISPARATE IMPACT CLAIM IS MODELED

A. The Appellate Division Decision Fails to Apply Federal Judicial Authority 

Defining Disparate Impact in a Manner that Requires Examination of Actual Effect on 

Individuals Subject to a Law or Practice Rather Than its Facial Scope

In summarily dismissing plaintiffs’ disparate impact claim, the Appellate Division 

of the F irst Department defined a disparate impact claim in a manner contrary to the federal authority

1 Both cases cited by the Appellate Division are readily distinguished from this case. Neither 
case involved a sexual orientation claim nor a disparate impact claim under the Administrative Code. 
The Court in Hudson View Properties v. Weiss, 59 N.Y.2d 733, 450 N.E.2d 234,463 N.Y.S.2d 428 
(1983) considered only a marital discrimination claim under the City Code, and Foray v. Bell 
Atlantic, 56 F. Supp. 2d 327, 329 n.2 (S.D.N.Y. 1999) involved a sex discrimination claim under 
Title VII o f the Civil Rights Act of 1964. That federal law, unlike the Administrative Code, does 
not prohibit discrimination on the basis of sexual orientation.

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upon which the disparate impact concept embedded in New York law is modeled. By dismissing 

the claim without any consideration o f whether or not members of the protected class are 

disproportionately affected by the defendant’s practices, the Court omitted from its analysis the core 

principles upon which the disparate impact claim is based.

The disparate impact claim has its origins in the United States Supreme Court 

decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). The 

Court’s decision in Griggs interpreted Title VII of the Civil Rights Act of 1964 to prohibit practices 

that are “fair in form, but discriminatory in practice.” Griggs v. Duke Power Co., 401 U.S. at 431. 

In enacting Title VII, Congress “directed the thrust o f the Act to the consequences o f employment 

practices, not simply the motivation.” Id. at 432. Applying this approach, the Court held that a job 

prerequisite applied equally to both White and Black applicants was nevertheless discriminatory 

because it disqualified minority applicants disproportionately and could not be shown to be essential 

to the employer’s business needs.

In a series of cases beginning with Griggs that define disparate impact, the Supreme 

Court has held that more than overt discriminatory practices are made unlawful by the Civil Rights 

Act o f 1964. Rather, under the disparate impact analysis, facially neutral practices that 

disproportionately deny opportunities to members of a protected class are also unlawful. Griggs v. 

Duke Power Co., 401 U.S. at 431; Dothard v. Rawlinson, 433 U.S. 321, 329-30 n.12, 97 S. Ct. 

2720, 53 L. Ed. 2d 786 (1977); Connecticut v. Teal, 457 U.S. 440, 448-49, 102 S. Ct. 2525, 73 L. 

Ed. 2d 130 (1982). It is not necessary to prove intent as an element of a disparate impact claim. 

International Bhd. o f Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S. Ct. 1843, 52 L. Ed. 

2d 396 (1977) (“Claims of disparate treatment may be distinguished from claims that stress

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‘disparate impact.’ The latter involve employment practices that are facially neutral in their 

treatment o f different groups but that in fact fall more harshly on one group than another and cannot 

be justified by business necessity, (citation omitted) Proof o f discriminatory motive, we have held, 

is not required under a disparate-impact theory.”).

The cornerstone o f disparate impact analysis is the disproportionate denial of 

opportunities to members o f the protected class caused by a defendant’s facially-neutral practice. 

In each o f these United States Supreme Court disparate impact cases, the central fact was the 

disproportionate treatment o f the protected class.2 In Griggs v. Duke Power Co., 401 U.S. at 430, 

a high school education requirement screened out 66% of White candidates but 88% of the Black 

candidates. In Dothard, 433 U.S. at 330 n.12, minimum height and weight requirements screened 

out less than 4% of the male candidates but more than 40% of female candidates. And, in 

Connecticut v. Teal, 457 U.S. at 443 n.4, a written examination screened out 20% of the White 

candidates but nearly 46% of the African-American candidates. In each of these cases, the 

challenged practice “had the same impact” on members of both the protected class and the non­

2 O f course, a showing of disproportionate treatment does not end the inquiry under the 
disparate impact analysis. The Supreme Court has applied a three-part test to evaluate fully a claim 
of disparate impact. Once a practice has been shown to have a disproportionate impact upon a 
protected class, the burden shifts to the defendant to show justification for the practice -  that the 
practice is required by business necessity. But even then, a practice may be unlawful if plaintiffs 
can show an alternate practice that would also serve the defendant’s “legitimate interest” without a 
“similarly undesirable racial effect.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 
2362, 45 L. Ed. 2d 280 (1975).

Plaintiffs alleged facts sufficient to support all necessary elements of their disparate impact 
claim. They alleged both disproportionate impact as well as an alternate practice that would serve 
the defendant’s interest with a lesser adverse impact. (Complaint, f  21) (A40).

Because the Appellate Division error here involved the first portion o f the Supreme Court’s 
three-part disparate impact test, the authority cited infra, pp. 4-7 addresses only the first portion of 
the Supreme Court’s test.

4



protected class — i.e., some members of both groups were denied employment opportunities. The 

high school education requirement in Griggs denied opportunities to both Black and White 

applicants who lacked a high school education. The minimum height and weight requirements in 

Dothard screened out both male and females whose height was below 5"2" and whose weight was 

below 120 pounds. And, the passing score of 65 in Teal denied employment opportunities to both 

Black and White candidates whose scores were below that level. Here, too, members of both the 

protected and non-protected classes are affected by the defendant’s marriage rule. Under Supreme 

Court authority, this is not the determinative inquiry. Rather, the Supreme Court has held that 

plaintiffs state claims of disparate impact when members o f the protected class are denied 

opportunities at disproportionate rates? 3

3 Many lower court decisions recognize that disproportionate treatment is the touchstone of 
a disparate impact claim. There is no requirement that the adverse treatment fall only upon the 
members o f the protected class. See, e.g., EEOC v. Local 638, 81 F.3d 1162, 1175 (2d Cir.,1996) 
(“The City submitted statistical evidence to the district court showing that a disproportionate share 
of the persons suspended under the Union's policy were nonwhite. According to the City, because 
nonwhite joumeypersons were terminated at a higher rate than their white counterparts, the policy 
of restricting reentry after two years disproportionately affected nonwhite members.”); Waisome v. 
PortAuth. ofN.Y. & jV.J.,948 F.2d 1370(2dCir. 1991) (“[T]he percentage o f blacks who scored 76 
or above, 42.2 percent, is substantially less than the 71.7 percent of whites who did so.”); Huntington 
Branch, NAACP v. Town o f Huntington, 844 F.2d 926 (2d Cir. 1988) (“Similarly, a 
disproportionately high percentage (60%) of families holding Section 8 certificates from the Housing 
Authority to supplement their rents are minorities, and an equally disproportionate percentage (61 %) 
of those on the waiting list for such certificates are minorities.”); Sobel v. Yeshiva Univ., 839 F.2d 
18 (2d Cir. 1988) (“In this case, the reason why the facially neutral guideline system had a 
"disproportionate" impact on women -- indeed, the only reason such a system of across-the-board 
salary increases could ever have a disparate impact -  was because o f pre-act discrimination, either 
in setting initial salaries or, at some point, in increasing them discriminatorily.”).

5



B. This Court Has Applied Federal Disparate Impact Standards While 

Rejecting Reasoning Virtually Identical to that Employed by the Appellate Division Here

This Court has previously applied Title VII principles to claims arising under the City 

and State Human Rights laws. See, e.g., Ferrante v. American Lung Ass ’n, 90 N.Y.2d 623,629,687 

N.E.2d 1308,665 N. Y.S.2d 25 (1997) (noting that standards for recovery under the Executive Law 

are “in accord with federal standards under Title VII.”); Pace College v. Commission on Human 

Rights, 38 N.Y.2d 28,339 N.E.2d 880,377 N.Y.S.2d 471 (1975) (applying federal case law to claim 

of sex discrimination under the Administrative Code).

This Court has also adopted disparate impact analysis in cases arising under both the 

State and the City Human Rights laws, even though the State law does not include the disparate 

impact provision that is part o f the City Code.4 State o f  New York v. New York City Transit Auth., 

59 N.Y.2d 343, 349, 452 N.E.2d 316, 465 N.Y.S.2d 502 (1983) (holding that complaint “states a 

disparate impact cause of action under the Human Rights Law,” relying upon, inter alia, Connecticut 

v. Teal, 457 U.S. 440); State Div. o f Human Rights v. Kilian Mfg. Corp., 35 N.Y.2d 201, 209, 318 

N.E.2d 770, 360 N.Y.S.2d 603 (1974) (applying standards o f Griggs v. Duke Power Company to 

company’s recruitment practices that were neutral in form); Matter o f  Sontag v. Bronstein, 33 

N.Y.2d 197, 201, 306 N.E.2d 405, 351 N.Y.S.2d 389 (1973) (reversing dismissal o f a complaint

4 Some courts have noted that the City law is to be interpreted more broadly than the State 
or federal law. See, e.g., Burger v. Litton Indus. Inc., No. 91 Civ. 0918, 1996 U.S. Dist. LEXIS 
5560, at *59 (S.D.N.Y. Apr. 24, 1996) (noting that the legislative history accompanying addition of 
disparate impact language to the Administrative Code made clear that it was the intent of the New 
York City Council that the Administrative Code provisions be interpreted broadly, and not be subject 
to “restrictive interpretations o f human rights laws on the state and federal levels.”). In light o f the 
federal authority applicable to this case, it is not necessary for this Court to address the question of 
the comparative reach of the City law.

6



challenging “a hiring standard, although neutral on its face or even neutral in terms o f intent, 

[because it] adversely affects equal employment opportunities for a protected class of persons..

In Campaign for Fiscal Equity v. New York, 86 N.Y.2d 307,655 N.E.2d 661 (1995), 

this Court rejected an analysis virtually identical to that employed by the Appellate Division in this 

case. In Campaign for Fiscal Equity, 86 N.Y.2d at 323, this Court held that the Appellate Division 

erred in dismissing disparate impact claims under Title VI o f the Civil Rights Act o f 1964. This 

Court correctly identified the standard for showing disparate impact -  “whether fthe challenged 

practice) falls significantly more harshly on a minority racial group than on the majority.” Id. at 323. 

In so doing, this Court relied upon Huntington Branch, NAACP v. Town o f Huntington, 844 F.2d 

926 (2d Cir. 1988), a Second Circuit decision that reversed a trial court decision on similar grounds.

In Huntington Branch, the Second Circuit held that it was error to dismiss a disparate 

impact claim simply because 22,160 whites and 3,671 minorities were affected by the challenged 

policy. The district court there erred when it “did not analyze the disproportionate burden on 

minorities as required by Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 

(1971) (footnote omitted).” Id. at 938. Reliance on “absolute numbers rather than on proportional 

statistics,” the Second Circuit held, “significantly underestimated the disproportionate impact o f the 

Town’s policy.” Id. at 938.

The Appellate Division decision dismissing the disparate impact claim in this case 

fails to recognize this core concept of disparate impact. Instead, the Court held that no disparate 

impact claim can be stated here because “it [the facially-neutral practice] had the same impact on 

non-married, heterosexual medical students as it had on non-married homosexual medical students.” 

The fact that the practice “had the same impact” in the sense that it denied opportunities to both non­

7



married heterosexual medical students as well as non-married homosexual medical students misses 

the point. The same can be said o f each of the neutral practices considered in each o f the disparate 

impact cases discussed supra. Because the Appellate Division’s decision utterly fails to consider 

the disproportionate exclusion o f the protected class (lesbians and gay males) from the housing 

opportunities afforded members o f the heterosexual group, it is in error.

The critical issue is whether the defendant’s practices regarding housing opportunities 

fall significantly more harshly on members of the protected class. Certainly in this case, the 

Complaint sufficiently alleges facts to infer just such a disproportionate exclusion. It alleges that 

lesbian and gay male medical students seeking to live in University housing with their life partners 

are excluded because o f the defendants’ requirement that proof of marriage be provided. 

(Complaint, THf 1 0 ,14)(A37-A38). The exclusion rate is, one may infer, 100%. The Complaint also 

alleges that heterosexual medical students (who are able to meet the marriage certificate 

requirement) receive preferential treatment under university policies. (Complaint, 10-12) (A3 7-

A38). A sa  result, the exclusion rate for members of the non-protected class, one may also infer, is 

at a rate well below 100%.

Under applicable New York standards, dismissal of the disparate impact claim was 

in error. Plainly, the plaintiffs show facts that “fit within a cognizable legal theory,” and “ha[ve] a 

cause o f action.” Leon v. Martinez, 84 N.Y.2d 83, 87-88, 638 N.E.2d 511, 614 N.Y.S.2d 972, 974 

(1994); Accord Edmond v. IBM ,9\ N.Y.2d 949, 694 N.E.2d 438, 671 N.Y.S.2d 437 (1998).

CONCLUSION

The Appellate Division’s affirmance o f the trial court’s dismissal o f the Complaint 

for failure to state a claim should be reversed. The Appellate Division has adopted a test for

8



disparate impact claims under New York City’s Administrative Code that is contrary to this Court’s 

precedents as well as applicable federal court authority. Disparate impact claims do not require 

discriminatory intent. Instead, they make unlawful facially neutral practices that fall significantly 

more harshly on a protected class than on the majority.

The Appellate Division test for stating a claim under the disparate impact theory 

ignores altogether the concept o f disproportionate effect. Instead, under the Appellate Division test, 

if the neutral practice adversely affects both the protected and non-protected class, the plaintiffs fail 

to state a disparate impact claim. This is contrary to established state and federal law which 

recognize that the key to stating a disparate impact claim is the disproportionate exclusion of the 

protected class from the opportunities at issue. For the foregoing reasons, the decision o f the 

Appellate Division respecting the disparate impact claim under the Administrative Code should be 

reversed.

Respectfully submitted,

Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Robert H. Stroup 
NAACP Legal Defense and 

Educational fund, Inc.
99 Hudson Street, 16th FI.
New York, NY 10013 
(212) 965-2200

Attorneys for Amici Curiae 
The NAACP Legal Defense & Educational 

Fund, Inc.

9



The Asian American Legal Defense and 
Education Fund

The Disability Rights Education and Defense 
Fund, Inc.

The Employment Law Center 
The National Asian Pacific American Legal 

Consortium
The National Employment Law Project 
The National Employment Lawyers 

Association/New York 
The National Women's Law Center 
The Puerto Rican Legal Defense and 

Education Fund

10



ATTACHMENT A

STATEMENT OF INTEREST OF AMICI CURIAE

The NAACP Legal Defense and Educational Fund, Inc. ( “LD F”)

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”), is a non-profit 

corporation organized under the laws of the State o f 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 United 

States Supreme Court, and other courts, in cases involving a variety o f race discrimination issues. 

Those cases include, inter alia, 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) 

and Bazemore v. Friday, 478 U.S. 385 (1986). Griggs and Albemarle Paper are both major Supreme 

Court interpretations of disparate impact law.

The Asian American Legal Defense and Education Fund (“AALDEF”)

The Asian American Legal Defense and Education Fund (“AALDEF”), founded in 

1974, is a non-profit organization based in New York City. AALDEF defends the civil rights of 

Asian Americans nationwide through the prosecution o f lawsuits, legal advocacy, and dissemination 

of public information. AALDEF has throughout its long history fought to protect the rights of all 

people to be free from discrimination. New York City’s Administrative Code provision prohibiting 

disparate impact discrimination is an important weapon in that fight. The erroneous interpretation 

of that provision by the Appellate Division would strip it of all meaning.

The Disability Rights Education and Defense Fund, Inc., ( “DREDF”)

The Disability Rights Education and Defense Fund, Inc., (“DREDF”) is the nation’s 

premier law and policy center dedicated to protecting and advancing the civil rights o f people with



disabilities. DREDF pursues its mission through education, advocacy, and law reform efforts, and 

is nationally recognized for its expertise in the interpretation of federal civil rights laws protecting 

persons with disabilities. DREDF is troubled by the Appellate Division’s departure from established 

disparate impact jurisprudence and the adverse effect that such a departure would have on people 

with disabilities and all other protected classes.

The Employment Law Center (“ELC”)

The Employment Law Center (“ELC”), the principal project o f the Legal Aid Society 

of San Francisco, was established in 1970, and is dedicated to protecting and advancing the rights 

of workers through litigation. The ELC has been involved in numerous law reform employment 

discrimination cases throughout the country. The ELC is committed to ensuring that state and 

federal laws that prohibit discrimination and other forms o f invidious conduct in the workplace are 

strongly enforced as it strives to achieve this country’s goal of equal employment opportunity. It 

therefore has a strong interest in this case.

The National Asian Pacific American Legal Consortium ( “NAPALC”)

The National Asian Pacific American Legal Consortium (“NAPALC”) is a national 

non-profit, non-partisan organization whose mission is to advance the legal and civil rights o f Asian 

Pacific Americans. Collectively, NAPALC and its affiliates have over fifty years of experience in 

law, public policy, advocacy, and community education on discrimination issues. Because 

discrimination on the basis of sexual orientation is intricately connected to the defense of civil rights, 

NAPALC is participating as amicus curiae in this case.

2



The National Employment Law Project ( “NELP ”)

The National Employment Law Project (“NELP”) is a non-profit organization 

dedicated to advocating for the employment rights o f the working poor and the unemployed. For 

over 25 years, NELP has engaged in direct advocacy and support o f organizing through litigation 

and policy work on a broad range of issues, including job training, employment discrimination, 

unemployment compensation, the employment rights of workfare participants, and the Family 

and Medical Leave Act. NELP has been at the forefront of advocating for anti-discrimination in 

low-wage jobs and is the author o f a comprehensive manual on employment discrimination for legal 

advocates. NELP and its constituents have a direct and sustained interest in the issues raised by this 

case.

The National Employment Lawyers Association/New York ( “NELA/NY”)

The National Employment Lawyers Association/New York (“NELA/NY”) is a state 

chapter o f a national bar association dedicated to the vindication o f individuals employees’ basic 

rights in employment-related disputes. NELA is the nation’s only professional organization 

comprised exclusively of lawyers who represent individual employees, and its more than 3,000 

member attorneys are expert in issues of employment discrimination, employee rights, and other 

issues arising from the employment relationship. NELA/NY believes that the Appellate Division’s 

treatment o f plaintiffs’ disparate impact claim implicates important issues in employment law.

The National Women’s Law Center (“NWLC’j

The National Women’s Law Center (“NWLC”) is a non-profit legal advocacy 

organization dedicated to the advancement and protection of women’s rights and the corresponding 

elimination of sex discrimination from all facets of American life. Since 1972, NWLC has worked

3



to secure equal opportunity for women in education, the workplace, and other settings, including 

through litigation of cases brought under national, state, and local anti-discrimination laws. NWLC 

has a deep and abiding interest in ensuring that these laws are fully implemented and enforced.

The Puerto Rican Legal Defense and Education Fund (PRLDEF)

The Puerto Rican Legal Defense and Education Fund (PRLDEF) is a national civil 

rights legal organization dedicated to protecting and furthering the civil rights o f Puerto Ricans and 

other Latinos. PRLDEF has litigated many disparate impact cases under various provisions of law. 

The resolution of the case currently before the Court will have a significant impact on the extent to 

which PRLDEF and other civil rights organizations can protect the civil rights o f their 

constituencies.

4



CERTIFICATE OF SERVICE

I hereby certify that three copies o f the foregoing MEMORANDUM OF LAW OF 

AMICI CURIAE have been served by depositing the same in the United States mail, first class 

postage prepaid, on this 31st day o f January, 2001, addressed to the following:

James D. Esseks, Esq.
Vladeck, Waldman, Elias & Engelhard, P.C.
1501 Broadway, Suite 800 
New York, N. Y. 10036

Michael Adams, Esq.
Matt Coles, Esq.
American Civil Liberties Union
125 Broad Street
New York, N. Y. 10004

Attorneys for Plaintiffs-Appellants

Mark A. Jacoby, Esq.
Weil, Gotshal & Manges, LLP 
767 Fifth Ave.
New York, N. Y. 10153

Attorney for Defendants-Respondents

ROBERT H. STROUP '