Position Statement – 2013
Women’s Equality Act
Part A – Pay Equity – Support
The Women’s Bar Association of the State of New York (WBASNY), through its Task Force on Women and Economic Issues, supports Part A of the Women’s Equality Act “Wage and Transparency” which protects employees who disclose salary or wage information to other employees.
The original proposed law makes it illegal for employers to retaliate against employees who ask about another employee’s salary or discuss their own salary with other employees. . An employer may not “discharge, …discriminate against, coerce, intimidate, threaten or interfere with any employee” who discusses or inquires about salary information.
It provides for remedies and enforcement of employer violations. The Department of Labor is authorized to receive, investigate and attempt to resolve complaints of wage disclosure retaliation. Employees may also pursue remedies in court which may award back pay, compensatory and punitive damages, attorney’s fees and expert witness fees. And it requires the Department of Labor to prescribe regulations necessary to carry out the provisions of the legislation.
WBASNY supports Wage Transparency because it allows women to share information about their salaries with other employees, without fear that they will lose their jobs or face some other retaliatory action for doing so. Existing state and federal equal pay laws are useless if there is no way for employees to lawfully determine, through discussions with one another, whether they are being paid equally.
It is widely known that American women working full-time are paid less than males working at the same job. Statistics have shown that in New York State, if the wage gap was closed, full-time working women and their families would have sufficient money for a year’s worth of food; 9 additional months of rent; 3 extra years of family health insurance premium coverage; or 4.4 months of mortgage and utility payments. Women earn less than men in almost all the most common occupations for women, and are twice as likely as men to work in occupations with poverty wages.
WBASNY believes that it is important to add language to the bill to ensure that employees do not engage in behavior unfair to the employer. For example, the actions of an employee who posts the salaries of all the employees online and/or at a private employer’s office could be seen as potentially discriminatory or retaliatory behavior towards the employer, as well as co-workers.
The right to inquire if pay inequity exists will help ensure that all members of the workforce, regardless of their gender or ethnicity, are paid equally.
In conclusion for the reasoning set forth herein, and with our concerns addressed, WBASNY supports wage transparency/Part A of the Women’s Equality Act.
Part B – Amendment of Exec. L. §292 – Support
Due to time constraints, the Women’s Bar Association of the State of New York (WBASNY) is unable to take a position at this time.
Part C – Allow for the Recovery of Attorneys Fees in Employment and Credit and Lending Cases – Support
The Women’s Bar Association of the State of New York (WBASNY), through its Task Force on Women and Economic Issues, supports Part C, which allows an individual to recover attorney’s fees for employment and Credit and Lending discrimination after proving discrimination at trial. WBASNY supports Point C which states that “over 75% of the employment and credit lending cases in this State are filed by women who are typically underrepresented and underserved. Because they are currently not allowed to collect attorney’s fees (a) many who are discriminated against never seek redress; (b) those who hire an attorney on a contingency fee arrangement are not “made whole” for their losses because they must pay for their attorneys out of their recovery; and (c) some who cannot afford to hire an attorney, but who try to do so on a contingency basis, are unsuccessful because the case is either too small or too risky. The amended law will include a provision for reasonable attorney’s fees for successful litigants, and ensure that victims of employment and credit and lending discrimination have an opportunity to vindicate their rights.”
Concerns expressed by the WBASNY Task Force included the risk of frivolous lawsuits which would be a detriment to employers or lenders who would be more likely to settle a frivolous lawsuit than take the risk of inflating attorney’s fees in preparing for trial. However, including “reasonable” in the statute, and possibly imposing a maximum on the amount of fees an attorney can collect, would mitigate this risk. Furthermore, the increased ability for victims to seek relief in court would deter employers and lenders from engaging in such activity or allowing it to occur.
In conclusion, because of the reasoning set forth herein, and with our concerns addressed, WBASNY supports allowing for the recovery of attorney’s fees in employment and credit and lending cases/Part C of the Women’s Equality Act.
Part D – End Family Status Discrimination – Support
The Women’s Bar Association of the State of New York (WBASNY), through its Task Force on Women and Economic Issues, supports Part D, which would amend the current law to prohibit employers from denying work or promotion to workers simply because they have children.
WBASNY supports Part D which states that “women with children are less likely to be recommended for hire and promoted, and, in most cases, offered less in salary than similarly situated men.” This type of discrimination deters mothers from seeking full time employment out of fear of being treated unfairly. If a women who is a mother can provide all the necessary qualifications that a job requires, her status as a mother should not have a negative impact on whether or not she is hired, promoted or, on the salary she shall receive. If a woman provides adequate proof demonstrating she has experienced this type of discrimination, and her employer cannot provide a reasonable explanation for the occurrence, the woman should be awarded damages for loss of income as well as penal damages against the employer.
Concerns expressed by the WBASNY Task Force included the burden that some small businesses may complain will be placed on them for providing amenities and health care to mothers if they are forced to hire them. However, the exposure of small businesses is the same as far as caretakers are concerned with mothers and fathers. Pregnancy and nursing accommodations, which are also addressed within the act, should be treated no differently than any other health accommodations that any employer would make for any employee.
In conclusion, because of the reasoning set forth herein, and with our concerns addressed, WBASNY supports ending family status discrimination/Part D of the Women’s Equality Act.
Part E – End Source of Income Discrimination – Support
The Women’s Bar Association of the State of New York (WBASNY), through its Task Force on Women and Economic Issues, supports Part E, which would amend the Human Rights Law to prohibit landlords from discriminating against tenants based on lawful sources of income.
WBASNY supports Part E because female-headed households account for 76% of all housing choice vouchers issued, including section 8 vouchers. The ability to choose where one can live encourages an enhanced quality of life and pride. By allowing landlords to prohibit a tenant from inquiring about an apartment solely because the landlord does not want a voucher recipient in that particular area, deters these voucher recipients from living in different parts of the state where they could learn about different cultures and traditions. Diversity in any particular area encourages that community to grow and learn tolerance towards those that are different from them. In return, voucher recipients are able to learn different methods and are inspired to excel to obtain the same quality of life as those that surround them.
Concerns expressed by the WBASNY Task Force included the risk of landlords losing what they consider their rights to control their properties. However, the statute only prohibits discrimination against a potential tenant solely because of the source of income, which includes listing the apartments with “No Section 8 or Vouchers allowed”. If a landlord’s apartment does not meet the standards that the voucher requires, they will not be forced to conduct such improvements on their property. However, this should not deter a voucher recipient from considering the apartment. Although Landlords may coin this as a “waste of time” it is important to meet or speak with all potential tenants as the desire for such an apartment may encourage voucher recipients to seek other sources of income. Furthermore, meeting with all potential tenants may encourage landlords who are struggling to occupy their units to improve their units to meet voucher requirements (ie. Handicap accessible and child proofing).
Victims of domestic violence face enormous housing challenges when they attempt to break free of an abuser. For many persons who are abused, domestic violence and homeless shelters offer a crucial source of safe housing. However, such programs are crisis-oriented and offer victims only a temporary, short-term solution to their housing needs. In some parts of the state shortages of available bed space may render even emergency domestic violence program-based shelter unavailable to some victims in need. Public and subsidized housing is a highly coveted and resource with demand far outpacing actual resources in most parts of the state. As most housing providers do not make domestic violence victimization status a bump-up priority for waiting lists, victims of abuse can linger for years on supported housing and Section 8 voucher wait lists. The combination of these emergency shelter shortages, lengthy waiting lists for public housing, and limited vouchers for housing subsidies conspire to make it increasingly difficult for victims around the state to locate and maintain safe and permanent housing, thus placing victims and their children at serious risk of homelessness.
Housing discrimination is a widespread problem for victims of abuse. As a result of various discriminatory practices, women who have found safety in a domestic violence program often face the greatest discrimination when they take the next step and begin the search for safe, permanent, and affordable housing that will allow them to leave the shelter and successfully re-enter the community. Victims may also face eviction based upon the violent and criminal acts of their abusers at their home or because they seek emergency assistance from law enforcement. Current or potential landlords and individuals selling or leasing property will may discriminate against victims when they learn of their personal circumstances. Practices such as these blame and punish the victim for the violent acts of an abuser against whom she or he wields no control. Such discriminatory practice also have an overall chilling effect on victims who fear that calling the police for help or taking other protective measures will impact their access to housing. Existing laws in New York do not adequately protect victims. By providing victims of domestic violence with housing accommodation-related protections in the Executive Law, this provision will prohibit this practice statewide.
Part F – Oral Translations of Orders of Protection for Limited English Proficient Litigants and Witnesses – Support
Part F would require courts to use a court-appointed interpreter to translate the essential terms of a temporary or final order of protection on the record. Part F would help to ensure that limited English proficient (LEP), Deaf or hearing impaired litigants have a meaningful opportunity to understand the substantive terms of the order issued by the court.
While New York courts are already required to provide for interpreters in proceedings involving LEP, Deaf, or hard of hearing litigants and witnesses, many courts have not traditionally utilized these interpreters to translate the detailed terms and conditions of orders of protection on the record, particularly upon the issuance of a temporary orders of protection. As a result, some LEP victims have not adequately enforced orders in their favor because they did not understand the provisions. Alternatively, some offenders have escaped accountability for violating orders issued against them based upon similar claims. While this bill does not require written translation of all an order’s terms and conditions or translation of the actual order into hard copy, translation of the essential terms and conditions on the record by an approved interpreter will provide these litigants and witnesses measurably increased relief.
While WBASNY supports this bill in the current fiscal climate, WBASNY is concerned that more needs to be done to support these litigants. Regardless of their English language skills, court appearances can be confusing, stressful and traumatic for many victims of domestic violence, as well as offenders. A hard copy of the order of protection in their native language is the most effective mechanism to ensure that all parties understand the entire order and facilitate both the enforcement of the orders and the prosecution of violations.
Because orders of protection are issued in local Justice Courts, Supreme Court, as well as in County and Family Courts, WBASNY urges that this bill be amended to include translation of orders of protection in any proceeding in which one may be issued.
However, the language of the proposed bill references a “court-appointed” translator. It is recognized that not all courts have prompt access to a “court-appointed translator” in all of the possible languages that could be necessary to comply with Part F as written. There is concern that, for example, for an arraignment after business hours in local justice courts, that this language could be understood to preclude the issuance of a temporary order of protection that may well be necessary for the safety of a victim, until a “court appointed” interpreter can be secured. WBASNY urges that Part F be amended to first make clear that the inability to access a translator does not preclude the issuance of an order or protection or limit the enforceability of any order that is issued. In addition, loosening of the language requiring a “court appointed” translator will allow for the meaningful translation of the order of protection with the use of readily accessible telephone translation services that are available twenty-four hours a day or even internet based translation services. This more cost-effective and practical approach will provide the meaningful translation and accomplish the goal of the legislation without over-burdening the court system.
Further, Part F does not require translation of the entire order, only the “essential terms”. Orders of protection contain many terms and conditions and their issuance has many implications, both state and federal. WBASNY is concerned that what is deemed “essential” will vary from judge to judge and may neglect to include critical provisions, such as firearms restrictions and interstate recognition and enforcement.
Part F – Enforcement of Orders of Protection – Support
WBASNY supports ensuring proper enforcement of Orders of Protection. This bill will clarify the law regarding violations of Orders of Protection, providing that protected parties cannot be held to have violated court orders issued to protect them.
New York State has established numerous laws and policies to address domestic violence. Orders of protections have been found to be among the most valuable legal tools for reducing incidents of abuse. Several studies have shown that victims with permanent orders of protection were less likely to be abused than victims without them. In the majority of cases, victims who receive orders of protection feel that the orders protect them from repeated incidents of physical and psychological abuse, in addition to helping them regain a sense of well-being. In follow up interviews, 80% of victims who received orders of protection reported feeling safer and 90% reported they felt better about themselves. Furthermore, in the vast majority of cases, the protection orders actually deterred repeated incidents of physical and psychological abuse.
An Order of Protection requires the restrained party to do, or to refrain from doing, certain acts such as staying away from or having no contact with the protected party. A violation of an Order of Protection is a crime. Under most circumstances, violation of an order of protection requires mandatory arrest of the restrained party. This enforcement mechanism is critical to ensure that Orders of Protection are more than just a piece of paper.
However, this important tool for victim safety is being enforced in a manner that was not intended by the legislature in some counties. Some victims of domestic violence in New York State who are the protected party of an Order of Protection have been arrested for “violating” their own order and are charged with crimes such as criminal contempt, criminal solicitation, criminal facilitation, aiding and abetting or accomplice liability. This is a dangerous practice that contradicts the intention of the law, undermines the safety of victims of domestic violence and diminishes trust in the legal system.
Aside from the obvious unfairness of arresting someone who was a protected party, from a legal perspective there are no due process protections that would justify or support these arrests. For example, in criminal proceedings, although the party against whom an order of protection is issued is required to receive personal notice of the order of protection and is advised in court of the contents and meaning of the order, such notice is not similarly provided to the protected party who is merely a witness or household member of the complainant. In some instances, the protected party will have little or no information about the issuance of the order of protection or the terms and conditions in its contents. Due to the fact that the prosecutor is the party responsible for seeking the order of protection in criminal court, the needs and wishes of the complainant may not be sought or considered when requesting the order itself or its respective terms and conditions. Furthermore, where a complainant may seek to modify or amend an existing criminal order issued on their behalf, the prosecutor retains the full discretion to advance such requests to the court and the court, in turn, retains the discretion to grant the relief. If the current practice is allowed to stay in place, people who have no knowledge of the parameters of the order of protection, who are not required to be served with the order and who may not even know of the order or have input into its contents could be held responsible for “violating” its provisions. This is a serious violation of the due process rights of these New York residents.
Furthermore, continued prosecution of complainants could violate the federal Violence Against Women Act (VAWA). The full faith and credit section of VAWA requires special safeguards for enforcement of this type of order across jurisdictional lines. It states that an order should be enforced against the respondent and not the petitioner, unless the respondent cross filed a written pleading for an order of protection and the issuing court made a specific finding that each party had abused the other. Only if such findings were made, may the order be enforced against both parties. 18 U.S.C. §2265(c). States have lost VAWA funding for the programs when their laws and policies do not fulfill the requirements of VAWA, which means that continued improper enforcement by prosecuting protected parties for violation of an order of protection issued on their behalf orders of protection could result in a loss of federal funding to New York State programs.
Part F would amend the domestic relations law, family court act and criminal procedure law by including sections that make it clear that protected parties may not be held to violate an order in which they are the protected party. Passage of this bill is critical to making Orders of Protection as effective as possible and to ensuring that due process of law is respected in New York.
In short, WBASNY is of the opinion that people who are supposed to be protected by orders of protection should not continue to face prosecutions, including possible incarceration, conviction and the collateral consequences that can ensue from an arrest.
Part G – Pilot Program – Support
The Act also establishes creation of a pilot program allowing victims of domestic violence to remotely and electronically file Family Court family offense proceedings from a non-court based location. Overseen and implemented by the Office of Court Administration, the pilot program would allow certain parties to file a family offense petition from a designated location, as well as provide ex parte testimony audio-visually for the initial appearance. The pilot program would initially be launched in one or more local domestic violence assistance programs, such as a Family Justice Center or domestic violence organization. By making the program available to parties for whom filing in Family Court would create undue hardship or risk of harm, the bill would provide these vulnerable victims with access to court-based relief. The bill also addresses practical issues such as domestic violence advocate training, the role of Family Court, filing procedures, a timetable for the pilot and the establishment of data for evaluation. WBASNY supports this provision which would provide victims with safety or other hardships critical access to the Family Court for emergency protection and relief.
Part H – Human Trafficking – Support with Recommendations
Part H enables prosecutors to better build trafficking cases against child sex traffickers by eliminating the requirement that they prove coercion. The federal Trafficking Victims Protection Act does not require a showing of force, fraud or coercion to find perpetrators who sell children for sex guilty of trafficking. This is also in line with the international law definition of trafficking set forth in the UN Convention Against Transnational Organized Crime (2000) (a.k.a. Palermo Protocol). Unfortunately, when our legislature passed the 2007 anti-trafficking legislation setting forth the means by which traffickers coerce their victims as the elements of the crime of trafficking, it neglected to create a separate provision to hold the traffickers of children accountable. Therefore, prosecutors in New York have to prove the means a trafficker used to sell a child for sex, which can be nearly impossible due to the increased vulnerability of children and the challenges of having them testify to details of their victimization. This bill would allow prosecutors to obtain trafficking convictions against perpetrators who have sold a child to someone else for purposes of sexual exploitation.
While Part H also holds the buyers of children for sex to the same standard to which we hold other child sexual predators accountable, WBASNY submits that any such legislation should require proof of specific intent and knowledge that the victim is a minor. Part H ensures that the penalties for sex and labor trafficking are commensurate with the severity of the crimes. Sex trafficking is currently a B Non-Violent Felony and this bill would make it a B Violent Felony. Since sex trafficking inherently involves rape, it should be considered violent. Labor trafficking, which is modern-day slavery, is currently a D Felony and would be increased to a B Felony. It should be noted that the Governor’s Women’s Equality Agenda, which has been endorsed by advocates around the state, calls for stiffer penalties for trafficking in persons.
In addition, Part H improves victims’ access to services by expanding the list of those who can make referrals to include established legal and social service providers. Currently, only law enforcement can make such referrals, which leaves out the many victims who are fearful of involvement with the criminal justice system.
Furthermore, while Part H laudably provides trafficking victims charged with prostitution with an affirmative defense that will prevent them from being revictimized by our justice system, the better practice should be that this be a defense, not affirmative defense, so that the prosecutor bears the burden of proving that the person charged is not a trafficking victim as opposed to requiring the victim to prove that she is a trafficking victim.
Part H sends a powerful message of zero tolerance of trafficking by enabling prosecutors to build effective cases against traffickers and by providing meaningful protection to victims.
Part I – Reasonable Accommodations for Pregnancy – Support
Current employment laws are inadequate to protect pregnant New Yorkers on the job. Under New York Law, employers are not required to make reasonable accommodations for pregnant women unless they have a pregnancy related disability. As a result, pregnant women in New York State are often forced to take unpaid leave or are fired for requesting a small accommodation. This lack of protection causes significant economic harm to thousands of pregnant women and their families every year, especially low-income and single mothers.
Part I would close this significant loophole in state and federal law. Specifically, this legislation would require employers to provide reasonable accommodations for pregnant women who make requests with the advice of their health care providers, unless doing so would create an undue hardship on the employer.
Reasonable accommodations for pregnant women are a public health necessity. Without the legal protections this legislation would provide, pregnant women are often reluctant to ask for and receive the accommodations they need both for their own health and the health of their unborn child. For many women, a choice between working under unhealthy conditions and potentially losing their income is no choice at all.
If passed, Part I would offer pregnant women an opportunity to continue working where they were formerly forced to take unpaid leave or were fired for requesting a small accommodation.
Part J – Enact the Reproductive Health Act – Support
WBASNY continues to be a strong supporter of a woman’s fundamental right to make her own reproductive health care decisions. The State of New York recognized the importance of protecting this right by enacting its abortion laws in 1970, and the United States Supreme Court solidified this protection when it decided Roe v Wade three years later. However, today, women are witness to this basic right being jeopardized and eroded by the United States
Supreme Court’s decision in Gonzales v. Carhart, which upheld a federal restriction on certain abortions, and by more than 1,100 provisions, introduced in also states and in Congress last year alone which attempt to limit, if not prohibit, abortion and family planning services.
The Reproductive Health Act will ensure that New York State stays at the forefront of protecting and respecting women’s health issues, and a woman’s right to make her own private reproductive health care decisions.
The Reproductive Health Act adds important protections for New Yorkers and ensures that women in New York are able to have an abortion if their health is in danger. It removes abortion care from the state’s criminal code and places it within the public health law where all other health services are regulated. In addition, the bill would ensure that all individuals in New York have the right to choose or refuse contraception.