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A00272 Summary:

COSPNSROtis, Simotas, Crespo, Quart, Lentol, Niou, Gottfried, Galef, Rosenthal L, Epstein, Griffin
Amd Art 1 §11, Constn
Relates to equality of rights and protection against discrimination.
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A00272 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Seawright
  TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to section 11 of article 1 of the constitution, in relation to equality of rights and protection against discrimination   PURPOSE: Section 11 of the New York Bill of Rights (Article 1) currently contains an equal protection provision that tracks the equal protection clause of the federal Constitution and a separate antidiscrimination provision covering race, color, creed or religion. The current discrimination provision purports to bar both governmental and private discrimination in "civil rights." However, judicial decision (See Dorsey v. Stuyvesant Town Corp., 299 N.Y 512) has sharply limited the effectiveness of this provision on the basis that it fails to define the term "civil rights" and is therefore not self-executing. This resolution proposes to amend section 11 to achieve three primary goals. First, it would expand section 11's coverage to include other classifications that have been used to subordinate and disadvantage certain members of those groups including, for example, women. These new classification are sex including pregnancy, sexual orientation, gender identity or expression, national origin, ethnicity, age and disability. Second it would define the term "civil rights" to make section 11 self- executing. Third it would make clear that the prohibited discrimination would include what is called disparate impact discrimination which consists of using a seeming neutral requirement to achieve a discriminatory impact lacking adequate justification. It does this both by barring denial or abridgement of equal civil rights and defining "civil rights" in terms of the "impact" of a particular right on equal opportunity.   SUMMARY OF PROVISIONS: Section (a) continues unchanged the terms of New York's equal protection provision, expands the classification covered by ban on discrimination in civil rights provision, adds to that discrimination ban a ban on the denial or abridgement of equal rights and defines the term civil rights as "any right that impacts the equal opportunity of all the people of New York to enjoy a full and productive life." The language of equal opportunity is drawn from the preamble of New York's Human Rights Law. Section (b) sets forth five constraints on the construction of section 11. This is necessary because section 11 is being made self-executing with real force and effect. The first constraint protects bonafide qual- ifications based on age or disability if allowed by law. For example mandatory retirement if allowed by law (as is currently the case in certain circumstances) would not be barred by section 11 if there is a bona fide reason for that mandate. Nor would consideration of disability as a qualification factor if there is a bona fide reason to do so and that consideration is authorized by law. The second constraint is to confirm the constitutionality of reasonable accommodation of pregnancy, a form of sex discrimination, or disability, whether required by law or provided on a voluntary basis in excess of legal requirements. The third constraint is to confirm the constitutionality of single sex or single religion education at a private educational institution. The language is drawn from the New York Human Rights Law. This constraint could be limited or eliminated by law. The fourth constraint is to assure that questions of accommodation of religious practice and the like will be resolved under the freedom of worship provision of the Bill of Rights (section 3) and not under section 11, for example, as matter of a claimed disparate impact on a particular religious group. Finally, the fifth constraint is intended to protect public and private activity to ameliorate conditions faced by the historically disadvantaged groups. It is the primary purpose of section 11 to protect these very individuals and communities. Section (c) recognizes that under the federal Constitution there is the possibility of federal preemption whether on statutory of constitutional grounds. It allows provisions that are preempted to be enforced only as allowed by the applicable constitutional or statutory provision. Simi- larly section 11 may be enforced in a way needed to avoid loss of feder- al funding if that course is authorized by law.   EXISTING LAW: Currently section 11 of the constitution provides protection from public or private discrimination on the basis of race, color, creed and reli- gion but for the reasons mentioned above is not self-executing.   JUSTIFICATION: Equality of rights is a fundamental principle of both our state and our nation, but conceptions of what equality of rights means have changed dramatically over our history. Section 11 was adopted in 1938, prior to the civil rights movement, the women's movement, the LGBTQ movement, the disability rights movement and the many other challenges to discrimi- nation in our state and nation. New York's Constitution should reflect the evolution of concepts of equal rights and protections from discrimi- nation that have occurred over the last eighty years. This amendment would provide that badly needed update.   FISCAL IMPLICATIONS: None.
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A00272 Text:

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                     January 9, 2019
        Introduced  by M. of A. SEAWRIGHT, OTIS, SIMOTAS, CRESPO, QUART, LENTOL,
          NIOU, GOTTFRIED -- read once and referred to the Committee on  Judici-
          ary  --  committee  discharged,  bill  amended,  ordered  reprinted as
          amended and recommitted to said committee -- again reported from  said
          committee  with amendments, ordered reprinted as amended and recommit-
          ted to said committee
        proposing amendments to section 11 of article 1 of the constitution,  in
          relation to equality of rights and protection against discrimination
     1    Section 1. Resolved (if the Senate concur), That section 11 of article
     2  1 of the constitution be amended to read as follows:
     3    §  11.  (a) No person shall be denied the equal protection of the laws
     4  of this state or any subdivision thereof. No person  shall,  because  of
     5  race,  color,  ethnicity,  national origin, age, disability, creed [or],
     6  religion, or sex including pregnancy, sexual orientation, gender identi-
     7  ty or expression, be subjected to any discrimination in or to any denial
     8  or abridgment of his or her equal civil rights by any other person or by
     9  any firm, corporation, or institution, or by the state or any agency  or
    10  subdivision  of  the state. The words "civil rights" mean any right that
    11  impacts the equal opportunity of all the people of New York to  enjoy  a
    12  full and productive life.
    13    (b) This section shall not be construed to:
    14    (1)  preclude bona fide qualifications for a job, position, benefit or
    15  service in a particular capacity if authorized by law  with  respect  to
    16  disability or age; or
    17    (2)  preclude  reasonable  accommodation with respect to disability or
    18  pregnancy; or
    19    (3) preclude a private educational institution that has  a  policy  of
    20  educating  students  of  one sex or religion from limiting enrollment to
    21  that sex or religion if so authorized by law; or
    22    (4) modify the requirements of section three of this article; or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 272--B                           2
     1    (5) invalidate or prevent the adoption of any law, regulation, program
     2  or activity that has as its purpose the amelioration  of  conditions  of
     3  historically disadvantaged individuals or communities.
     4    (c)  (1)  Nothing  in this section shall be interpreted as prohibiting
     5  legislative action which must be taken to establish or  maintain  eligi-
     6  bility  for  any  federal program, where ineligibility would result in a
     7  loss of federal funds to the state.
     8    (2) If any part of this section, or any action taken to  enforce  this
     9  section,  be  finally  declared  invalid under federal law or the United
    10  States Constitution, the section shall be  implemented  to  the  maximum
    11  extent  that  federal law and the United States Constitution permit. Any
    12  provision held invalid shall be severable from the remaining portions of
    13  this section.
    14    § 2. Resolved (if the Senate concur), That the foregoing amendment  be
    15  referred  to  the  first regular legislative session convening after the
    16  next succeeding general election of members of  the  assembly,  and,  in
    17  conformity  with  section  1  of  article  19  of  the  constitution, be
    18  published for three months previous to the time of such election.
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