New York's Prop 1 Solidifies Anti-Discrimination Protections in State Constitution

With over 60% of the vote, New York’s Proposal 1 (“Prop 1”), also known as the Amendment to Protect Against Unequal Treatment and the Equal Rights Amendment, passed this election year. In doing so, the New York Constitution will expand to protect more specified classes, including sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.

The text of Prop 1 reads as follows:

“§ 11. a. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed [or], religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in [his or her] their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.

b. Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section. (Explanation – Matter in underscored is new; matter in brackets [ ] is old law to be omitted.)

Prior to this amendment, New York State had passed statutes protecting similar classes of individuals. In 2003, the Sexual Orientation Non-Discrimination Act (“SONDA”) became effective, which protected individuals targeted based on their actual or perceived sexual orientation in, among other areas, their employment, private and public housing accommodations, and admission to education institutions. In 2015, the New York State Human Rights Law (“HRL”) was amended to make clear that failure to provide reasonable accommodation for pregnancy-related conditions is a form of disability discrimination. In January 2019, the HRL was amended to protect individuals to provide protection on the basis of gender identity and expression. With all of these protections already in place, it would make sense to ask, what difference does the implementation of Prop 1 make in terms of protections against discrimination in New York State?

The answer: Prop 1 will likely not affect the protections already afforded under New York State statutes. However, as with the federal government, adding an amendment to the New York State Constitution creates increased stability and security for its provisions. In order to make a change to the New York State Constitution, the proposed amendment must be approved by both the Senate and Assembly in two separate sessions. While certainly not an impossible process, altering the New York State Constitution is certainly more difficult and time consuming than altering a statute. Essentially, the discrimination protections afforded by the HRL, its subsequent amendments, and other statutes like SONDA, are now encompassed in New York’s highest governing legal document. Just as your right to freedom of speech is protected under the First Amendment to the United States Constitution, your right to be discriminated against under any one of the seven specifically protected classes and the six subcategories, is now protected in New York under its Constitution. However, the protections afforded under Prop 1 are more narrowly limited as compared to the protections detailed in the HRL.

One key consideration is that in adding an amendment to the New York State Constitution, the way in which it will be applied is soon to be interpreted by the courts, including the New York State Court of Appeals. Some argue that a state constitutional protection against age discrimination will result in efforts to lower things such as the drinking age or age required to obtain a driver’s license. However, there has been no evidence in New York, or any other state’s history to suggest such a possibility. Susan Cersovsky, co-chair of the Sex & Law Committee at the New York City Bar Association stated as much, saying that there are cases addressing “age protections in [other] state constitutions . . . and the courts have found that the government maintains an interest in regulating public health and welfare.”

There have also been concerns raised about changes in voting eligibility for non-citizens as a result of the passage of Prop 1. However, there has likewise been no confirmation to that theory either in United States history or New York history. There is no language in Prop 1 that discusses voting eligibility or any change in necessary qualifications. In fact, Article II, Section I of the New York State Constitution, already explicitly defines the qualifications required to vote and has not been amended since 1995. Either way, any challenge brought on this basis would be weighed by the courts, as all constitutional challenges are, and would likely find that non-citizens are still bound by Article II, Section I of the New York State Constitution.

In conclusion, while Prop 1 does not introduce new discrimination protections in New York State, it plays a crucial role in solidifying the state's commitment to equality by embedding these protections into its highest legal framework. By enshrining the rights to protection against discrimination based on sex, sexual orientation, gender identity, pregnancy, and more into the New York State Constitution, the amendment ensures greater stability and legal security for these rights. Although its impact on the existing statutes may be minimal, Prop 1’s passage represents a significant step in reinforcing the state's dedication to civil rights and equal treatment for all.

Edward D. Passero is an Associate in Underberg & Kessler LLP’s Litigation and Family Law practice groups. Edward is a former Appellate Court attorney who represents businesses, organizations, and individuals in litigation, negotiation, and mediation. He can be reached at epassero@underbergkessler.com.

Reprinted with permission from The Daily Record and available as a PDF file here.