CODI: Cornucopia of Disability Information

Rights of People with Disabilities:

CHAPTER IV HOW ARE THESE RIGHTS ENFORCED? As people become more aware of their rights and those of others, those rights become part of the common fabric of society and are honored by most without the need for enforcement through grievance procedures, administrative agencies or courts. Hopefully, this publication will assist in this process of general enlightenment. Two government offices which also can help people become more aware of rights in this area are the New York City Mayor's Office for People with Disabilities and the New York State Office of the Advocate for the Disabled. (Addresses and telephone numbers for these and many other helpful resources are listed in an Appendix at the back of this volume.) Although these offices can provide information, referral and some advocacy, they are not enforcement agencies, nor can they represent people in legal matters. The New York State Commission on Quality of Care for the Mentally Disabled also serves some of the purposes of the other two offices. Unfortunately, enforcement sometimes will be necessary. In most such situations, the government agencies which administer the laws will be the appropriate place to turn for help; in others, legal service offices or private attorneys will handle the details. The material which follows will identify paths to pursue in vindicating rights under the various laws discussed above. Procedures under most of those laws relate to more than one of the subject areas covered previously. These laws prohibit retaliation against a person for asserting his or her rights; penalties for such retaliation sometimes include incarceration. Even the fastest of legal proceedings takes some time. In some cases, the procedures outlined below may take many months or even years. Thus, while pursuing legal remedies, other aspects of life should go on. Denial of a job should lead to a search for another. A person successful both in such a search and in legal proceedings may have an eventual choice between the job lost and the one found. If an apartment has been denied, another should be found. Success may come in an award of money damages and the satisfaction of knowing that those who have discriminated will be less likely to do so in the future. In any event, a person seeking compensation has a legal obligation to mitigate (lessen) damages, as well as a common sense objective of making the most of each day. - 53 - A FEDERAL REHABILITATION ACT 1. Section 503 a. Complaint Procedure (1) Discuss compiaint with employer's affirmative action officer; or (2) file an internal grievance with the employer; or (3) file written complaint with the U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCPi') (201 Varick Street, NYC 10014 ((212) 337-2006)) within 180 days of the alleged violation. 41 C.F.R. Sec. 60-741.26. (4) No private right of action, i.e., the ability of an aggrieved individual to bring a lawsuit on his or her own, generally is available under Sec. 503. See Meyerson v. Arizona, 709 F.2d 1235 (9th Cir. 1983), vacated and remanded, 465 U.S. 1095 (1984). However, if OFCCP has resolved a complaint through a conciliation agreement (41 C.F.R. Sec. 60-250.26) including reinstatement and/or back pay, but the contractor does not honor the agreement, the individual might bring a private lawsuit to enforce that agreement. See Terry v. Northrup Worldwide Aircraft Service, 628 F. Supp. 212, 217 (M.D. Ala. 1984), vacated and remanded on other grounds, 786 F.2d 1558 (11th Cir. 1986) (citing Eatmon v. Bristol Steel & Iron Works, 769 F.2d 1503 (11th Cir. 1985). Such third party lawsuits are permitted in New York. See In re Spong, 661 F.2d 6,10-11 (2d Cir. 1981); Burns Jackson v. Lindner, 59 N.Y.2d 314, 336, 451 N.E.2d 459, 469, 464 N.Y.S.2d 712, 722 (1983). However, a third party private lawsuit may not be brought until there is a breach of such a conciliation agreement. See Davis v. United Airlines, 575 F. Supp. 677 (E.D.N.Y. 1983). b. Remedies can include suspension of progress payments on current Federal contracts, termination of current Federal contracts, debarment from future Federal contracts, and, under a conciliation agreement, reinstatement of employee and/or back pay. 29 U.S.C. Sec. 794a; 41 C.F.R. Secs. 60-741.28, 60-250.26. 2. Section 504 1. Complaint Procedure (1) Discuss with Sec. 504 Coordinator; or (2) file an internal grievance (if procedure available); or (3) file written Sec. 504 complaint with the Federal agency which funded the program, service (or, where no funding is provided to the particular program or service involved, with the Federal agency providing funding to the recipient generally) within 180 days of the alleged violation; or (4) file a private lawsuit. Unlike Sec. 503, Sec. 504 has been construed to permit a private right of action by individuals who feel they have been victims of discrimination based on disability. See Consolidated Raii Corp. v. Darrone, 465 U.S. 624 (1984); Doe v. New York University, 666 F.2d 761, 774 (2d Cir. 1981). In New York, such a suit must be brought within three years of the discriminatory act. Martin v. New York State Department of Labor, 512 F. Supp. 353 (S.D.N.Y. 1981) (applying CPLR Sec. 214(2)). b. Remedies can include reinstatement of employee, back pay, withdrawal of Federal funding, attorney's fees and other relief. 29 U.S.C. Sec. 794a. - 53, 54, 55 - B FEDERAL FAIR HOUSING ACT The U.S. Department of Housing and Urban Development ("HUD") is empowered to attempt conciliation and, failing that, to proceed to administrative hearings; either side, however, has the right to bring a dispute under the law into Federal court. Complaints may be filed with HUD's Fair Housing and Equal Opportunity Office, Region ll, at 26 Federal Plaza, Room 3532, NYC 10278 ((212) 264-1290). 1. Complaint Procedure a. Administrative Proceedings -- File complaint with HUD within 1 year after alleged discriminatory housing practice has occurred or ceased. 42 U.S.C. Secs. 3610, 3612; 24 C.F.R. Secs. 103 and 104 (1990). b. Judicial Proceedings (1) If HUD files a charge based on an administrative complaint, the complainant may elect to ask HUD to have the U.S. Justice Department file a civil lawsuit on his or her behalf. 42 U.S.C. Sec. 3612(o). (2) File a private lawsuit within 2 years after alleged discriminatory housing practice has occurred or ceased, or after a conciliation agreement has been violated. 42 U.S.C. Sec. 3613. 2. Remedies may include injunctive relief, money damages, civil fines (up to $50,000 for a first offense; up to $100,000 thereafter) and attorney's fees and costs. Which remedies are available depend to some extent on whether an administrative or a judicial route is taken. Bona flde sales or leases made before relief is granted will not be disturbed, however. 42 U.S.C. Secs. 3612, 3613. Building Code violations are under the jurisdiction of local Buildings Departments, rather than HUD. For example, the New York City Department of Buildings has a Borough Office in each borough; complaints should be made to the appropriate Office if a building (either residential or otherwise) is found to be without required accessibility features (discussed under Housing and Public Accommodations). - 55 - C FEDERAL EDUCATION OF THE HANDICAPPED ACT The procedures under this law have been discussed extensively in the substantive section on Education since they are unique to that area. Nonetheless, a few general notes may be appropriate at this point. Parents should work with the Committee on Special Education of their Community School Board. If parents need Federal assistance in securing their rights under the Education of the Handicapped Act, they should communicate with the Office of Special Education and Rehabilitative Services in the U.S. Department of Education, which administers the law with help from that Department's Office for Civil Rights. Region ll of the U.S. Department of Education is located at 26 Federal Plaza, Room 33-130, NYC 10278 ((212) 264-2906). (The U.S. Department of Education also handles complaints of discrimination in higher education.) D NEW YORK STATE HUMAN RIGHTS LAW 1. Complaint Procedure a. Administrative Proceedings -- File complaint with New York State Division of Human Rights (see Appendix ll for addresses and telephone numbers) within one year of the alleged violation (Executive Law Sec. 297.5); in New York City, the City Commission on Human Rights also has jurisdiction to enforce the State Human Rights Law (State General Municipal Law Sec. 239-s) (New York City Commission on Human Rights, 52 Duane Street, NYC 10007 ((212) 566-5050)); OR b. Judicial Proceedings -- File a private lawsuit in State Supreme Court within three years of the discriminatory event. Murphy v. American Home Products, 58 N.Y.2d 293,448 N.E.2d 86,461 N.Y.S.2d 232 (1983). In general, the limitations period on employment discrimination claims begins to run at the time an employee learns of the discrimination. For example, if an employee is told on April 15 that his or her employment is to be terminated as of July 15, and then is terminated on the latter day, the limitations period will have begun on April 15, not July 15. See Delaware State College v. Ricks, 449 U.S. 250 (1980); Chardon v. Fernandez, 454 U.S. 6, 7 (1 981 ). 2. Remedies may include reinstatement, back pay, damages or other remedial action. The State Division may impose fines; failure to comply with State Division orders may be deemed a misdemeanor, carrying an additional fine of between $100 and $500. Executive Law Sec. 299. E NEW YORK STATE CIVIL RIGHTS LAW 1. File a private lawsuit. 2. Seek enforcement by New York State Attorney General or District Attorney. 3. Criminal sanctions may be imposed for violations. Violators of Civil Rights Law Sec. 40-c may be found guilty of a Class A Misdemeanor and fined $100-$500, payable to the person charging discrimination. Civil Rights Law Sec. 40-d. Noncompliance with Civil Rights Law Article 4B is classified as a violation. Civil Rights Law Sec. 47-c. - 55, 56 - F NEW YORK CITY HUMAN RIGHTS LAW 1. File a charge with New York City Commission on Human Rights, 52 Duane Street, NYC 10007 ((212) 566-5050), within one year of the alleged violation. The Commission is empowered to hold hearings, make findings and issue cease and desist orders. The Commission may seek judicial enforcement of its orders and a complainant or respondent may seek judicial review of the Commission's orders within thirty days of the issuance of the order. Administrative Code Secs. 8-109, 8-110. 2. Remedies may include reinstatement, back pay, damages and other remedial action. Administrative Code Sec. 8-109.2(c). Willful violations of the City Commission's orders are Misdemeanors punishable by imprisonment for not more than one year and a fine of not more than $500. Administrative Code Sec. 8-111. G ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION Some statutes, collective bargaining agreements and other programs involve arbitration or some other alternative dispute resolution mechanism which may be faster, easier and less expensive than waiting for administrative action or proceeding to a lawsuit. However, these approaches have their limitations as well and should be considered carefully in comparison with more traditional procedures. H WHICH FORUM SHOULD YOU CHOOSE? Whether one chooses to file charges with a City, State or Federal government agency, to file a State or Federal lawsuit, or to seek arbitration or some other form of alternative dispute resolution, depends on a variety of factors which may best be weighed in consultation with one of the enforcement agencies or with a private attorney. Effectiveness, promptness and cost of the various alternatives may be among the factors to explore. It is important to decide early whether to follow administrative procedures, rather than pursuing private litigation, since pursuit of one course may bar another. A court may defer to arbitration or to a State or City administrative proceeding when one of these alternatives has been commenced before a court suit is begun; an administrative proceeding may be stopped when an action in court begins. For example, under the Fair Housing Amendments Act of 1988, HUD may not file an administrative charge after a private lawsuit has been filed on the same facts (42 U.S.C. Sec. 3610(g)(4)) and a private suit may not be filed after an administrative hearing officer has begun a hearing on a charge filed by HUD (42 U.S.C. Sec. 3613(a)(3)); see also 42 U.S.C. Sec. 3612(a). - 57 - I ATTORNEYS AND ATTORNEY'S FEES Frequently, people with disabilities, like others seeking legal assistance to enforce their rights, do not have the money to pay a lawyer. Fortunately for those with disabilities, many of the laws setting forth their rights also provide for complaint processing and enforcement by administrative agencies, without the need for the complainant to hire a lawyer. Many of these laws also provide for the award of attorney's fees, particularly where a Constitutional or Federal statutory right is violated. Finding an Attorney Where a court determines that the person claiming discrimination is unable to afford an attorney or to pay court costs or fees, the court sometimes is authorized to appoint an attorney and to waive payment of court costs and fees. Some people may meet income limitation requirements for representation by legal service organizations. Law school clinics, while usually very limited as to the number of cases they can take and as to when in the school year they can accept cases, sometimes provide representation in the general disability field. Some groups which seek to assist people with disabilities are listed in Appendix 11. For those who do not qualify for free legal services, referral to attorneys may be obtained through legal referral services sponsored by local bar associations, such as the Legal Referral Service jointly sponsored by the Association of the Bar of the City of New York and the New York County Lawyers' Association: Legal Referral Service The Association of the Bar of the City of New York 42 West 44th Street New York, New York 10036 (212) 382-6625 (voice)/(212) 768-1466 (TDD) Of course, government agencies represent people who file complaints with those agencies, without the need for an independent attorney. Nonetheless, representation by an outside attorney often can be helpful. Attorney's Fees The Civil Rights Attorney's Fees Award Act of 1976, sometimes more commonly referred to as Section 1988 (42 U.S.C. Sec. 1988), provides for the award of attorney's fees to prevailing parties to encourage private citizens to take legal action as "private attorneys general" to enforce various civil rights laws. Principles developed in litigation involving Sec. 1988 are applicable to analogous attorney's fees provisions, such as those relating to Sec. 504 of the Federal Rehabilitation Act. See 29 U.S.C. Secs. 794a(b), 794a(a)(2); J.G. v. Board of Education, 648 F. Supp. 1452 (W.D.N.Y. 1986), aff'd in part, modified in part, 830 F.2d 444 (2d Cir. 1987) (29 U.S.C. Sec. 794a(2)(b)). For attorney's fees under the Education of the Handicapped Act, see 20 U.S.C. Sec. 1415. Attorney's fees may be recovered under Sec. 1988 whether the proceeding is brought in Federal or State court. See Johnson v. Blum, 58 N.Y.2d 454, 448 N.E.2d 449, 461 N.Y.S.2d 782 (1983); Hudak v. D'Elia, 120 A.D.2d 667, 502 N.Y.S.2d 261 (2d Dep't 1986). To be a prevailing party, one only need succeed on any (not necessarily all) significant issue which achieves some of the benefit sought by that party in bringing the lawsuit. Texas State Teachers Union v. Garland Independent School District, 109 S. Ct. 1486 (1989), remanded, 874 F.2d 242 (5th Cir. 1989). Even a plaintiff who settled a civil rights suit has been entitled to attorney's fees. J.G., 648 F. Supp. 1452 (29 U.S.C. Sec. 794a(2)(b)); Martinez v. Perales, 135 A.D.2d 818, 522 N.Y.S.2d 922 (2d Dep't 1987) (Sec. 1988); but see North Carolina Department of Transportation v. Crest, 479 U.S. 6 (1986) (no independent Federal cause of action for attorney's fees under Sec. 1988 where suit filed solely to collect fees, after administrative resolution of substantive case). An employee of a Federal contractor may be entitled to attorney's fees for successfully enforcing a conciliation agreement benefiting the employee. See Eatmon v. Bristol Steel & Iron Works, 769 F.2d 1503, 1509 (11th Cir. 1985) (Title Vll conciliation agreement). The complaint will be viewed liberally in determining whether the person seeking fees was trying to secure a right protected by one of the laws covered by Sec. 1988. See Torres v. Perales, 121 A.D.2d 386, 503 N.Y.S.2d 96, 98 (2d Dep't 1986); Johnson v. Blum, 58 N.Y.2d at 457, n.2, 448 N.E.2d at 450, n.2, 461 N.Y.S.2d at 783, n.2; Rahmey v. Blum, 95 A.D.2d 284, 466 N.Y.S.2d 350, 356, n.2 (2d Dep't 1983). The reasonable fees to be awarded are based on the prevailing market rates for legal services in the relevant community, Blum v. Stenson, 465 U.S. 886 (1984), and may depend on the degree of success in the case, Garland, 109 S. Ct. 1486. Another avenue for attorney's fees in suits against the United States may be the Equal Access to Justice Act, 28 U.S.C. Sec. 2413. The Fair Housing Amendments Act of 1988 provides for attorney's fees for prevailing parties in both judicial and administrative proceedings. 42 U.S.C. Secs. 3612(p), 3613(c)(2). With respect to education litigation, if the parent prevails in the due process proceedings -- whether through a decision in court or in administrative proceedings or by a settlement -- attorney's fees may be recovered. Although the case law is unclear as to whether the impartial hearing officer can award attorney's fees, the New York City Board of Education has settled applications for attorney's fees that were made directly to the Board. In any event, the parent could file a complaint in Federal or State court seeking payment of attorney's fees. The attorney's fees are to be based on rates prevailing in the community for the kind and quality of services rendered. 20 U.S.C. Sec. 1415(e)(4); Stenson, 465 U.S. 886 (same standard for both private and non-profit counsel). A parent need not exhaust administrative remedies before seeking attorney's fees. See Matter of Esther C. (Ambach), 135 Misc.2d 445, 515 N.Y.S.2d 997 (Sup. Ct. Albany Cty. 1987), aff'd as modified and remanded, 142 A.D.2d 94, 535 N.Y.S.2d 462 (3d Dep't 1988), appeal dismissed, 75 N.Y.S.2d 765 (1989); Matter of Sidney K. (Ambach), 535 N.Y.S.2d 468 (3d Dep't 1988), appeal dismissed, 75 N.Y.S.2d 765 (1989); Matter of Behavior Research Inc., (Ambach), 535 N.Y.S.2d 465 (3d Dep't 1988). If the parent is represented by an advocate who is not a lawyer, recent case law suggests that the parent will be unable to recover the advocate's fees. - 57, 58, 59 -
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