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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1118

1118     IOWA LAW REVIEW     [Vol. 49

can be made sufficiently general to catch novel attempts at evasion or subterfuge. Because such provisions are not penal, they can also be construed broadly to effectuate their purpose.
   In terms of remedy, another significant question remains. The desirability of an administrative approach to the enforcement of these statutes of the kind outlined is clear. However, should it be exclusive? It certainly makes little sense to continue any separate criminal cause of action on the books after providing an administrative remedy with the sanction of contempt behind violation of the commission's orders. But what of the private action for damages? Should it remain available as an alternative to administrative vindication of the right to equal opportunity?
   In answering this question it is well to note that the vigor with which antidiscrimination legislation is enforced will be more important in the long run than the particular approach used. Administrative enforcement will be unproductive where it is weak, while a well-enforced statute according a right of damages will produce substantial results. Even where juries are not in sympathy with such legislation, a forceful policy of pressing civil damage suits can often result in adequate law enforcement. This is because the expense of defending antidiscrimination suits will often run high--and there is always the risk of an adverse judgment. Furthermore, although the expense factor in bringing civil suits also cuts against the injured plaintiff, civil rights organizations may help to absorb these costs for him and therefore spur private enforcement.
   In light of these facts, it is not surprising that many states have retained the private civil action for damages even after they have an administrative remedy.167 This makes good sense since it affords injured parties pecuniary redress where it is appropriate; it assures at least to some extent the vindication of an injured party's rights where the administrative agency wrongly refuses to act; and it tends to keep the commission on its toes. The last is true because the private damage actions, especially if successful, will usually act as a prod to greater and more vigorous action by the commission.
   Many states which provide both an administrative remedy and a
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167 See id. at 573-74. It should be noted that cities and states that have enacted antidiscrimination laws enforced by administrative agencies may find that they have thereby also created private rights of action, even though their legislation is silent on the subject. In the view of the New York Supreme Court, so long as the statute does not expressly make the administrative remedy exclusive, the person discriminated against can sue for both compensatory and punitive money damages. Bachrach v. 1001 Tenants Corp., 32 U.SL. WEEK 2349 (N.Y. Sup. Ct. 1964).

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1118 IOWA LAW REVIEW [Vol. 49 can be made sufficiently general to catch novel attempts at evasion or subterfuge. Because such provisions are not penal, they can also be construed broadly to effectuate their purpose. In terms of remedy, another significant question remains. The desirability of an administrative approach to the enforcement of these statutes of the kind outlined is clear. However, should it be exclusive? It certainly makes little sense to continue any separate criminal cause of action on the books after providing an administrative remedy with the sanction of contempt behind violation of the commission's orders. But what of the private action for damages? Should it remain available as an alternative to administrative vindication of the right to equal opportunity? In answering this question it is well to note that the vigor with which antidiscrimination legislation is enforced will be more important in the long run than the particular approach used. Administrative enforcement will be unproductive where it is weak, while a well-enforced statute according a right of damages will produce substantial results. Even where juries are not in sympathy with such legislation, a forceful policy of pressing civil damage suits can often result in adequate law enforcement. This is because the expense of defending antidiscrimination suits will often run high--and there is always the risk of an adverse judgment. Furthermore, although the expense factor in bringing civil suits also cuts against the injured plaintiff, civil rights organizations may help to absorb these costs for him and therefore spur private enforcement. In light of these facts, it is not surprising that many states have retained the private civil action for damages even after they have an administrative remedy.167 This makes good sense since it affords injured parties pecuniary redress where it is appropriate; it assures at least to some extent the vindication of an injured party's rights where the administrative agency wrongly refuses to act; and it tends to keep the commission on its toes. The last is true because the private damage actions, especially if successful, will usually act as a prod to greater and more vigorous action by the commission. Many states which provide both an administrative remedy and a ________________________ 167 See id. at 573-74. It should be noted that cities and states that have enacted antidiscrimination laws enforced by administrative agencies may find that they have thereby also created private rights of action, even though their legislation is silent on the subject. In the view of the New York Supreme Court, so long as the statute does not expressly make the administrative remedy exclusive, the person discriminated against can sue for both compensatory and punitive money damages. Bachrach v. 1001 Tenants Corp., 32 U.SL. WEEK 2349 (N.Y. Sup. Ct. 1964).