In this response to Burt Neuborne\u27s Who\u27s Afraid of the Human Rights Commission, the author views Neuborne\u27s proposal as representing an inevitable shift in the Commission\u27s limited resources to more preventative measures in combating discrimination.  This article argues that Neuborne\u27s approach sacrifices the interests of individual victims of discrimination by focusing Commission resources on employer-centered plans for rights discrimination.  The article outlines six drawbacks of the Neuborne model, and concludes that more minor changes will allow a proper balance between allocating resources for post- and pre- event occurrences of discrimination

Acosta, Rolando T.

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A Response to Burt Neuborne

Fordham University School of Law

Fordham Urban Law JournalVolume 23 | Number 4 Article 71996A Response to Burt NeuborneRolando T. AcostaFollow this and additional works at: https://ir.lawnet.fordham.edu/uljPart of the Accounting Law CommonsThis Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted forinclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For moreinformation, please contact tmelnick@law.fordham.edu.Recommended CitationRolando T. Acosta, A Response to Burt Neuborne, 23 Fordham Urb. L.J. 1165 (1996).Available at: https://ir.lawnet.fordham.edu/ulj/vol23/iss4/7A RESPONSE TO BURT NEUBORNERolando T Acosta*In distinguishing between the improper conduct of individualswho caused a human rights violation and the derivative liability ofan employer, Professor Burt Neuborne's proposal' goes too far andsacrifices the interests of individual victims of discrimination forthe almost impossible goal of preventing future acts of discrimina-tion. That is, Neuborne asks whether it continues to make sensefor the Commission on Human Rights to focus on remedying pastacts of discrimination rather than on preventing future unlawfuldiscriminatory acts from occurring, given the complexity of suchcases, the well-developed constitutional and statutory law in thearea, the shrinking resources for human rights agencies, and themoral difficulty of civil rights cases today. Neuborne suggests thatgiven these four considerations, we must make serious choices be-tween remedying acts of discrimination ("remedial approach") andpreventing future acts from occurring ("preventive approach").He concludes that within the context of derivative liability foremployee violations of human rights norms, we should focus Com-mission resources on the "preventive" rather than the "remedial"approach. Some of the Commission's resources, ProfessorNeuborne posits, should be shifted from traditional civil-rights en-forcement to the designing, supervising, and certifying of employerplans to prevent discrimination.Neuborne argues that we should distinguish between the unlaw-ful discriminatory conduct of an individual employee and the deriv-ative liability of the employer based on such unlawful behavior.We should place liability on the morally culpable actor and makehim/her pay the financial price of making the complainant whole.Employer liability would be triggered only when the resources ofthe culpable actor become exhausted, in which case one of twothings happens: (1) if the employer does not have an effective planfor the prevention of discrimination in the workplace, strict respon-deat superior liability would be imposed, relying on the appropri-* Director, Government & Community Relations, The Legal Aid Society. B.A.,Columbia College, 1979; J.D., Columbia, 1982. Former Commissioner, New YorkCity Commission on Human Rights.1. See Burt Neubome, Who's Afraid of the Human Rights Commission?, 23FORDHAM URB. L. J. 1139 (1996).1165FORDHAM URBAN LAW JOURNAL [Vol. XXIIIate traditional sanctions to induce compliance; or (2) if an effectiveplan is in place, the employer would be relieved of liability as longas it is not also morally culpable in some way for the discriminatoryacts.Finally, Neuborne suggests two caveats to his proposal. First,that his proposal may be less applicable to privately representedcomplainants proceeding under a private right of action; and sec-ond, that his proposal is merely a response to inadequate publicresources to conduct effective civil rights law enforcement.We can all agree that encouraging voluntary compliance is moreeffective than remedying discrimination on a case-by-case basis.The question, however, is how do we encourage compliance with-out upsetting the balance between prevention and remedy in thecurrent New York City Human Rights Law? Professor Neuborne'sproposal inevitably results in the shift of already inadequate re-sources to administrative monitoring functions and thereby risksprecluding effective civil rights law enforcement in New York City.The result of his proposal would be a powerless City Commissionserving as an administrative compliance agency with little, if any,ability to investigate, prosecute, and adjudicate cases ofdiscrimination.Professor Neuborne is right about the inevitable choices we mustmake between conducting adequate remedial investigations andprosecutions and ensuring the preventive compliance. Giventhe choices, however, I prefer an approach which safeguards therights of victims of discrimination and does not accept ProfessorNeuborne's invitation to create additional inducements foremployers.To be sure, I would frame the question differently from Profes-sor Neuborne. I do not believe the choice is between effective en-forcement on the one hand and the valuable preventive functionson the other. The choice should be between a reactive agency thatprocesses individual cases-the overwhelming majority of whichare ultimately found to be without merit-and a proactive agencythat identifies systemic discrimination and brings affirmative casesto remedy those patterns and practices.I have a few additional concerns about Professor Neuborne'sproposal. First, it is unclear to me whether human rights commis-sions generally, and the City Commission particularly, are theagencies best suited to the preventive functions at issue. I wonderif private actors, including law firms concentrating on defendingemployers, are not in a better position and have more credibility1166A RESPONSE TO BURT NEUBORNEwith employers than human rights commissions, which have tradi-tionally been perceived as adversaries. Indeed, there are currentlyprivate law firms designing and developing corrective plans for pri-vate employers. They should continue to do this work with assist-ance and guidance from the City Commission and othergovernmental agencies with similar functions (e.g., the Equal Em-ployment Opportunity Commission).Second, while Professor Neuborne is correct to be concernedabout the allocation of resources to human rights agencies, includ-ing the City Commission, it seems more prudent to deal with theissue directly. For example, we would move to amend the CityHuman Rights Law to relieve the Commission of its current obliga-tion to accept for investigation each and every complaint filed, re-gardless of its merit. This discretion would permit the Commissionto use its scarce resources more proactively in implementing its en-forcement strategy.2 This is not the forum to flesh out the merits ofthis modest proposal. It suffices to say that the way to deal withthe resources issue is not to do away with enforcement altogether.Rather, we should give the Commission staff, with proper adminis-trative and judicial review, the ability to effectively (not to mentionlawfully) triage complaints filed before the Commission based onclearly articulated standards.Third, I do not believe that the problem has ever been with theremedial focus of the Commission's enforcement mechanism. Themain obstacle to eradicating discrimination is not the mechanismused, but the underlying beliefs we have about delivering justice.Human rights agencies have never been taken seriously by a sys-tem generally threatened by effective efforts to enforce civil rightslaws. The goal should not be to abandon effective enforcement togive employers more incentives to do something they already havea moral and legal responsibility to do. Nor is it to relieve employ-ers of liability by throwing more obstacles in the already difficultpath victims of discrimination must travel.Certainly, before we entertain notions such as those contained inProfessor Neuborne's proposal, we must fight to level the playingfield by providing more resources and, as importantly, to inducestakeholders in this process (judges and legislators, among others)to treat an affront to a person's dignity at least as seriously as aparking ticket. Someone humilated and irreparably damaged by a2. I must credit this idea to Craig Gurian, the principal drafter of the currentHuman Rights Law. He unsuccessfully advanced this idea in 1991 during the delicateand arduous process of amending the City Human Rights Law.1996] 1167FORDHAM URBAN LAW JOURNAL [Vol. XXIIIdiscriminatory act is awarded significantly less money and treatedwith less respect than a person stupid enough to walk into a Mc-Donald's and not expect hot coffee to be hot.Fourth, the current Human Rights Law contains adequate incen-tives to induce employers to establish plans to prevent and detectunlawful discriminatory practices. Section 8-107(13) holds employ-ers liable for acts of co-employees when the employer knew, orshould have known, of the employee's discriminatory conduct andfailed to exercise reasonable diligence to prevent it.3 An employerwho had "established and complied with policies, programs andprocedures for the prevention and detention of unlawful discrimi-natory practices by employees"'4 is allowed to plead and prove thesame, possibly reducing or avoiding both civil penalties and puni-tive damages.The practical aspect of these provisions is that the employer isspared the penalty she/he fears the most, namely uncapped puni-tive damages. However, the responsible employer with a preven-tive plan could be relieved of even the usually smallercompensatory damages. In reality, an employer with an effectivepreventive plan who neither knew nor should have known of thediscriminatory act, or knew and took reasonable preventive meas-ures, would likely be found not liable.The current Human Rights Law's safe harbor provisions, how-ever, differ from Professor Neubome's proposal in that the currentlaw is predicated on aggressive civil-rights enforcement coupledwith adequate inducement to the responsible employer.Neuborne's proposal, on the other hand, is based on little or noactual enforcement. The Commission's inadequate law enforce-ment resources would be almost totally engaged designing, super-vising, and certifying preventive human rights plans established byemployers.Finally, perhaps the most problematic aspect of ProfessorNeuborne's proposal is that it unnecessarily sacrifices the interestof an individual victim of discrimination at the altar of employersafe harbors. The proposal ignores the balance struck by the cur-rent law to encourage responsible employer conduct by mitigatingpunitive damages and to ensure that the victim of discrimination-certainly the most innocent party-be made whole. We did notbase this most important social policy choice on "moral culpabil-3. NEW YORK, N.Y., ADMIN. CODE § 8-107(13) (1996).4. § 8-107(13)(d)(1).5. § 107(13)(e).1168A RESPONSE TO BURT NEUBORNEity," but rather on where it is more appropriate to locate the risksattending discriminatory behavior.Accordingly, if the employer in Ruiz v. Arcade Elevator6 had hada preventive plan in effect and had not been "morally culpable,"Ms. Ruiz would not have been made whole. She would have hadto seek satisfaction of the $450,000 award against the very sameindividuals who had raped her, held her at gun point, and other-wise humilated her. It would have been Ms. Ruiz's burden to showthat the resources of the morally culpable employee were ex-hausted before she would have been allowed to go after the em-ployer. This is a very high price to pay to induce employerresponsibility.Additionally, under the Neuborne proposal, some victims of dis-crimination may be left without redress because private lawyerswill agree to represent only those complainants with the strongestcases; that is, those cases of overt discrimination requiring little in-vestigation or discovery. Cases which are more subtle and com-plex, requiring thorough investigation and expertise, would be leftunresolved. Although a few lawyers will accept these cases on acontingency basis, some complainants may not be able to afford thecosts associated with such litigation.In conclusion, although I agree with Professor Neuborne that a"post-event" approach to dealing with unacceptable behavior oftenswallows any "pre-event" efforts to prevent the unacceptable con-duct in the first place, we differ on the solution. Whereas ProfessorNeuborne would have us abandon traditional aggressive civil rightslaw enforcement, I simply recommend that we remain vigilant andfind ways of encouraging human rights agencies to combine aggres-sive enforcement with effective pre-event efforts. I am convincedthat the "natural bridge" between pre- and post-event functions ofthe law, to which Professor Neuborne alludes, is still viable. Ef-forts to eradicate discrimination in the workplace can be most ef-fective when we combine an aggressive and hard-hitting approachto deal with unacceptable behavior with a means of providing clearguidelines for what is acceptable. To go too far in either directionleads down the wrong path.6. Compl. No. EM 00465-08/29/88, Rec. Dec. & Ord. (Dec. 5, 1994), adopted asmodified, Dec. & Ord. (N.Y.C.C.H.R. Feb. 28, 1995).11691996]

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