Columbia Law Review

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Columbia Law Review


    104 Colum. L. Rev. 768

    (Cite as: 104 Colum. L. Rev. 768)

    Columbia Law Review

    April, 2004




    Stacy Laira Lozner

    Copyright ? 2004 Directors of The Columbia Law Review Association, Inc.;

    Stacy Laira Lozner

     San Francisco was the first city in the country to address public sector discrimination through a local ordinance inspired by the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This Note situates the San Francisco CEDAW ordinance within developing experimentation in the field of domestic regulatory law. Its participatory approach to public problem solving engages citizens and governmental actors in the formulation of regulatory solutions, requiring city agencies to assess their practices in order to identify discriminatory trends or patterns in terms of gender, race, and other identities, and to remedy any discriminatory practices identified. As other cities--most notably New York City--consider enacting a similar ordinance, effective strategies for diffusion of San Francisco's regulatory innovation must be considered. Communication and information pooling between participants in the San Francisco process and innovators in other localities are essential to the success of subsequent CEDAW ordinance experiments. However, this Note argues that mere replication of San Francisco's regulatory design will be unworkable. Other cities must tailor their ordinances to local political and social contexts.


     In 1998 San Francisco became the first city in the country to experiment with a regulatory design inspired by the United Nations human rights regime--in particular, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) [FN1]--through the passage of a local ordinance. [FN2] The San Francisco CEDAW

    ordinance promotes the "equitable treatment of all persons" by the city government, based on an analysis of "data collected about who receives services, how effective these services are, what funds are being expended and whether services and programs [meet] the needs of the population served." [FN3] The ordinance requires city agencies to

    assess their practices in order to identify discriminatory trends or patterns with regard to gender, race, and other identities. At the completion of these assessments, agencies must craft solutions aiming to end any discriminatory practices identified.

     *769 The San Francisco CEDAW ordinance responds not only to needs within San Francisco, but also to recent experimentation within the field of domestic regulatory law. [FN4] As regulatory agencies have been increasingly

    criticized as unresponsive to public needs and limited by the adversarial nature of agency decisionmaking, [FN5]

    appeals for regulatory reform have been "procedural" in nature, urging agencies to make decisionmaking procedures

    ? 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.


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"more transparent" and "politically responsive." [FN6] The CEDAW ordinance can be situated within the framework

    of one regulatory innovation addressing these shortcomings--participatory problem solving. [FN7] Participatory

    problem solving places "an emphasis on what is perhaps the central reality of public problem-solving for the foreseeable future--namely, its collaborative nature, its reliance on a wide array of third parties in addition to government to address public problems and pursue public purposes." [FN8] It attempts "to institutionalize the

    ongoing participation of ordinary citizens, most often in their role as consumers of public goods, in the direct determination of what those goods are and how they should be best provided." [FN9] In participatory problem solving,

    citizen participation--and the public pressure it generates--provides an incentive structure, as well as an information base, for the data gathering and analysis essential to formulating effective regulatory solutions. Participatory problem solving thus requires broad participation, provisional *770 solutions, the sharing of regulatory responsibility across

    the public-private divide, and a flexible, engaged agency. [FN10]

     While San Francisco has elected to address public sector discrimination through traditional antidiscrimination laws, the city has also pioneered regulation based on this model of participatory problem solving. The enactment of the San Francisco CEDAW ordinance signaled the institutionalization of an ongoing process that utilizes information gathering and critical analysis about agency practices to expose problems and to formulate potential responses. Monitoring, reporting requirements, and public participation provide the means for agency accountability. Public participation not only enabled learning to take place through public hearings before the ordinance was enacted, but also sustains political pressure in order to provoke agency action should it not occur through the deliberative process the ordinance establishes. Indeed, the San Francisco ordinance belies traditional criticisms of collaborative governance, [FN11] successfully linking aspirational standards to a system of problem solving by granting specificity to general norms, creating a dynamic system of collaboration between nonprofits and local government, and using formal law to legitimate informal law. [FN12]

     The San Francisco CEDAW ordinance is suggestive of a more general model of local regulation of public sector discrimination. However, it is also quite specifically tailored to the social and political context of San Francisco. While other cities seeking to enact a CEDAW ordinance might simply propose to adopt the San Francisco ordinance itself, as this Note argues, a cookie-cutter approach to diffusion of the San Francisco ordinance would preclude the element of context-specificity that is integral to San Francisco's innovation. Although "[n]ot every regulatory problem can be solved using the same decision-making process or conducted according to the same script," [FN13] cities

    seeking to implement a similar regulatory scheme will benefit from critical reflection upon the San Francisco experiment. Communication and information pooling between participants in the San Francisco process and innovators in other localities may improve the quality of subsequent CEDAW ordinance experiments. [FN14] *771

    However, simple replication of San Francisco's regulatory scheme will be unworkable. [FN15]

     This Note advocates participatory problem solving as a way forward, while posing the question of how to think about one regulatory innovation in a way that helps to make good decisions in the context of another. Part I of this Note examines the emerging model of participatory problem solving. Part II explores the structure of the San Francisco CEDAW ordinance, characterizing its approach to addressing public sector discrimination as an experiment in participatory problem solving. Part III contemplates the implementation of similar legislation in other cities throughout the United States, and in New York City in particular, arguing against a model of diffusion through replication. Finally, this Note concludes that while other cities will undoubtedly benefit from the work that has been done in San Francisco, the San Francisco regulatory model cannot merely be replicated, but must be locally adapted such that it is responsive both to local needs and political realities.

    I. The Emerging Model of Participatory Problem Solving

     Recent scholarship has described the emergence of new, more complicated, and less obvious forms of discrimination. [FN16] While "first-generation" discrimination--or "deliberate exclusion or marginalization because of . . . race, ethnicity, national origin, sex, age, religion, sexual orientation, or disability"--is (ideally) straightforwardly addressed through litigation and the prohibition of disparate treatment, "second-generation" discrimination is characterized by "[s]tructures of decision-making, patterns of interaction, and cultural norms . . . that are not immediately discernible at the level of the individual." [FN17] Shifting patterns of exclusion and bias, then, require "a move beyond the

    traditional civil rights paradigm, which focused on articulating formal rights enforced externally *772 through

    after-the-fact, formal legal processes." [FN18] Indeed, the complexities of second-generation discrimination

    necessitate that courts and government agencies move away from the type of specific and inflexible rules that

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presently typify our legal system. [FN19]

     Part I.A of this Note briefly addresses the limitations of traditional regulatory mechanisms in responding to systemic public sector discrimination. Part I.B differentiates participatory problem solving from other methods of regulation within the field of collaborative governance. Part I.C then elaborates on the emerging model of participatory problem solving, which holds promise for local regulation of public sector discrimination.

A. The Traditional Regulatory Model

     The "characteristically rule-based and rule-bound regulatory model" employed by agencies is known as command-and-control regulation. [FN20] This model addresses "problems . . . by imposing and enforcing, in

    top-down fashion, tough binding rules aimed principally at the largest and most visible categories of corporate targets, and secondarily at [government] agencies" and "relies primarily on fixed, highly prescriptive rules rather than flexible standards or adjustable goals and objectives." [FN21] Command-and-control regulation has been criticized as

    inadequate for "reshaping relationships, solving problems, and reallocating power," [FN22] as *773 specific and

    inflexible rules are not readily adaptable and thus are often poorly suited to unanticipated and complex contexts. [FN23]

B. Collaborative Governance

     The field of collaborative governance is comprised of various regulatory methods, including negotiated rulemaking, alternative dispute resolution, stakeholder negotiation, and participatory problem solving. [FN24] However, unlike

    participatory problem solving, many of these methods of collaborative governance "primarily involve elites and experts, thus retaining the top-down quality typical of much [traditional] adversarial governance." [FN25]

     Negotiated rulemaking, for example, involves the negotiation of government regulations by representatives from government, regulated entities, citizen groups, and other affected organizations prior to the agency's decision to issue a proposal for a new regulation. A negotiated rulemaking committee composed of the various stakeholders "meets in an effort to reach unanimous agreement on a proposed rule." [FN26] Negotiated regulation has been criticized for

    making agencies vulnerable to capture by private interests, [FN27] as well as for its tendency to replicate existing

    imbalances of power. [FN28] Scholars have also expressed concern that negotiated *774 regulation substitutes

    consensus for public norms, thereby privatizing the agreements reached. [FN29]

C. Participatory Problem Solving

     Critics of both command-and-control regulation and top-down methods of collaborative governance argue that "a model that views the administrative process as a problem-solving exercise in which parties share responsibility for all stages of the rule-making process, in which solutions are provisional, and in which the state plays an active, if varied, role" is both more effective and more legitimate. [FN30] This problem-solving regulatory approach embraces

    experimentation, encourages site-specific tailoring of regulations, and emphasizes the need for transparency and accountability throughout the decisionmaking and implementation processes. [FN31] Its aims include the production

    and dissemination of information about specific problems, institutional capacity building [FN32] with an emphasis on

    problem solving, and the development of systems of accountability. [FN33] Recently, this approach has been

    successfully incorporated *775 into local regulatory innovations. [FN34] These experiments in regulatory problem

    solving are founded upon public-private partnerships and based upon the recognition that neither nonprofits nor governmental agencies can solve community problems on their own. [FN35]

     One criticism of participatory problem solving is that decisionmaking structures put in place by regulatory innovations are chaotic and unwieldy, [FN36] in that "[l]ines of authority and divisions of responsibility are often

    neither formal nor transparent," and "[r]oles, identities, and allegiances [may] become blurred in a jumble of hybrid public-private, national-and-local, inter-agency governance arrangements." [FN37] Another criticism is that

    government officials may be reluctant to share power and resistant to newly imposed accountability mechanisms. [FN38] This disinclination to allocate regulatory power traditionally hoarded by high-level officials may result in the recruitment and involvement of nongovernmental actors on the basis of past or promised political patronage. Thus, participation is often perceived as dependent upon political whim and existing social conditions, reinforcing and

    ? 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.


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recapitulating social and economic disadvantages within the regulatory process. [FN39] While such tendencies may

    be checked by mechanisms of transparency and accountability, there is no guarantee that, if faced with an apathetic or uninformed public, government officials "may have an interest in building mechanisms of monitoring and transparent accountability that, while necessary for institutional*776 learning and experientially based deliberation, will

    inevitably publicize their failures and so bring painful criticism." [FN40]

     However, while participatory problem-solving experiments may alter hierarchical regulatory structures and draw new parties into decisionmaking processes, they do not inevitably result in bedlam or regulatory devolution. Nor does participatory problem solving necessarily imply the abdication of governmental authority and control over regulatory processes. [FN41] Indeed, participatory problem solving takes seriously mechanisms of accountability, ensuring that while roles of various stakeholders within the process expand, regulatory reins are not handed over to private or nonprofit actors. [FN42] Furthermore, sharing such data and bringing community groups into the regulatory process may not only transform relations between agencies and the public, but also transform relations within agencies themselves. [FN43] This approach allows for context-specific regulation, as well as flexibility in determinations of compliance, acknowledging that both the roles and the needs of stakeholders may be transformed by the problem-solving process. [FN44] Such regulatory flexibility is an especially important component to consider in the design and implementation of antidiscrimination regulation, in which discretion is often essential to formulating a responsive and fair remedy. [FN45] Part II of this Note places the San Francisco CEDAW ordinance and the

    governance structure it has instituted within this developing regulatory approach.

    II. The San Francisco CEDAW Ordinance: The Participatory Problem-Solving Model

    in Action

     Participation both by government and nonprofit actors is integral to the success of the San Francisco CEDAW ordinance. Rather than maintain a reactive focus on post-violation remediation, as will be discussed below, the ordinance seeks to institutionalize a proactive response to discrimination, distinguished by the ongoing participation of local government, nonprofits, and citizens, as well as networking between localities. *777 Because the CEDAW

    ordinance is aimed at remedying discrimination--a systemic problem--it must rely on "interdisciplinary collaborations with multiple stakeholders to address problems that are not limited to the articulation of legal norms or the response to potential legal violations." [FN46] By "utilizing the state for what it does best--raising resources and setting broad societal directions-- while using nonprofit organizations for what they do best--delivering services at a human scale and innovating in new fields--important public advantages can thus be gained." [FN47] Therefore, the San Francisco

    model benefits from "empower[ing] individuals, close to the points of action, who possess intimate knowledge about relevant situations," as they "may also know how best to improve the situation." [FN48]

     Part II.A of this Note describes the efforts undertaken to draft and enact the CEDAW ordinance. Part II.B outlines the structure of the CEDAW ordinance and the processes of information gathering, policy analysis, and reporting that it establishes. Part II.C describes results of ordinance implementation to date.

A. Background of the Ordinance

     The United States has not yet ratified CEDAW, and while it has ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD), [FN49] there has been no federal implementation of the treaty. [FN50] In

    1998, however, San Francisco enacted local legislation to implement the principles of CEDAW. [FN51] The

    ordinance was amended in 2000 to reflect the principles of CERD. [FN52] The Women's Institute for *778

    Leadership Development for Human Rights (WILD for Human Rights), the nonprofit organization primarily responsible for promoting the ordinance, identified four primary motivations behind local implementation of the CEDAW ordinance: It would (1) "demonstrate[ ] to elected federal officials . . . how critical ratification and implementation of CEDAW are to women in the United States," [FN53] (2) serve to bring women's issues under the

    rubric of human rights, [FN54] (3) "bring[ ] the weight of international human rights into our communities [and] . . . provide[ ] us with mechanisms to adopt international success strategies and best practices here in the United States," and (4) provide our communities with "a proactive strategy to promote change, rather than a reactionary one." [FN55]

     The San Francisco ordinance was brought about through the efforts of four partner organizations. In addition to WILD for Human Rights, Amnesty International USA Western Region, the Women's Foundation, and the San Francisco Commission on the Status of Women (COSW) led *779 the organizing efforts. [FN56] The ordinance was

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    drafted by the COSW, the office of the San Francisco Board of Supervisors President Barbara Kaufman, and the city attorney, [FN57] and was enacted after a series of public hearings. These hearings signified to the Board of Supervisors, as well as to the coalition members, that the public was invested in the ordinance and would hold accountable the agencies participating in the process. [FN58]

     The COSW was selected as the facilitation and monitoring body, and a CEDAW Task Force, composed of members from governmental and community organizations and empowered to carry out local implementation of the ordinance, was established by the legislation. [FN59] The COSW works with the Task Force to implement the processes

    established by the ordinance, resulting in a participatory regulatory scheme in which "both public and private actors share responsibilities." [FN60] The COSW and the Task Force work with city agencies to conduct gender analyses of the employment, funding allocation, and direct and indirect service delivery practices of their agencies, as well as to develop action plans to redress any discrimination found. [FN61] Additionally, the COSW and the Task Force provide

    human rights training to all participating agencies.

B. Structure of the Ordinance

     The CEDAW ordinance is premised on the belief that "[a]dherence to the principles of CEDAW on the local level will especially promote equal access to and equity in health care, employment, economic development and educational opportunities for women and girls and will also address the continuing and critical problems of violence against women and girls." [FN62] It defines discrimination against women and girls as any

     *780 distinction, exclusion or restriction made on the basis of sex that has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. [FN63]

     1. CEDAW Task Force.--One way in which the ordinance seeks to institutionalize the process it initiates is through the establishment of a CEDAW Task Force, which reports to the Mayor, the Board of Supervisors, and the COSW. [FN64] The purpose of the Task Force is to advise the Mayor, the Board of Supervisors, and the COSW on the local implementation of CEDAW. [FN65] The eleven members of the Task Force, as designated by the ordinance, include "elected officials, organized labor, government employees, and community advocates with expertise in economic justice, human rights, violence against women, and health." [FN66] Appointed Task Force members serve at the

    pleasure of their appointing authorities, and the term of each community member is limited to two years, though reappointment for consecutive terms is possible. [FN67]

     A sunset provision in the ordinance mandated that the Task Force expire on December 31, 2002, unless renewed by the Board of Supervisors. [FN68] At a Task Force meeting in October 2002, it was decided that all sections of the ordinance referring to the current Task Force would be removed and replaced with language creating a CEDAW Committee. The Committee would have seven voting members and three nonvoting members. The Mayor, the President of the Board of Supervisors, and the Executive Director of the COSW would become ex officio, rather than voting, members. The seven voting members would include the President of the COSW and six community representatives. These community representatives--or at-large members--would be appointed, two each, by *781 the

    President of the Board of Supervisors, the Mayor, and the COSW. [FN69] These changes took effect as part of the

    CEDAW Five Year Action Plan approved by the COSW on February 1, 2003, and the CEDAW Task Force expired on June 30, 2003. [FN70]

     2. Gender Analysis.--The heart of the ordinance is the participatory process that it puts in place, requiring the city to integrate the human rights principles included in CEDAW and CERD into its policies, programs, and budgetary decisions. [FN71] To further this objective, city agencies are selected to undergo gender analysis and human rights training, [FN72] with the aim not to produce another departmental report, "but to put a process in motion that will integrate gender into policy decisions, program planning, and employment on an ongoing basis." [FN73] The COSW

    and the Task Force define gender analysis as a "framework for analyzing the cultural, economic, social, civil, legal, and political relations between women and men," noting that "[t]his framework takes into account the important links between gender and other social relations such as race, immigration status, language, sexual orientation, disability, age, and other attributes." [FN74] Through participation in the gender analysis, the agencies "become skeptics and form the habit of asking why problems occur, what larger social conditions contribute to the problem, and who can help

    ? 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.


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assist in solving the problem." [FN75]

     In March 1999, the COSW hired the consulting group Strategic Analysis for Gender Equity (SAGE) to work with the Task Force to develop and implement gender analysis guidelines together with agencies selected to undergo gender analysis. [FN76] The guidelines were developed through a participatory process, in which SAGE worked closely with the selected agencies, COSW staff members, the Task Force, organized labor, and community groups. [FN77] SAGE's

    role in developing the gender analysis guidelines was instrumental, since "[t]o monitor action units, central authorities must first develop metrics that indicate the quality of deliberative processes (e.g. reporting requirements) and also . . . . develop methods *782 to collect this data." [FN78] While the process was participatory, one participant has described

    the role of the COSW in the initial stages of development and implementation as "very much the liaison" between SAGE and the agencies, "priming" the agencies, "translating [SAGE's] requests," and gathering information from them. [FN79]

     While the ordinance itself details a framework within which City agencies are to conduct the gender analysis, [FN80]

    the process is elaborated upon further in A Gender Analysis: Implementing the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a manual made available by the COSW. [FN81] The gender

    analysis is intended to assist agencies in evaluating the needs of both the populations they serve and their employees, as well as to facilitate the integration of this information into the agencies' daily operations. [FN82]

     The gender analysis, however, is only one component of a five-step process imposed by the ordinance, designed to lead city agencies "from data collection through implementation and monitoring." [FN83] The five-step process

    includes: (1) collecting disaggregated data [FN84] and reports, (2) conducting a gender analysis using human rights

    principles, (3) formulating recommendations, (4) implementing recommendations through an action plan, and (5) monitoring the action plan and CEDAW implementation. [FN85]

     The process begins with each department undergoing human rights training so that agency staff can more effectively participate in the gender analysis. [FN86] Next, agencies review any information they have collected, including raw

    data on budget, services, and employment, as well as information from employee and community focus groups and surveys. Agencies then hold reflection and brainstorming sessions in which management *783 and staff analyze this

    information together, with technical assistance from the COSW. Ultimately, the gender analysis involves reviewing data to identify trends or patterns in terms of gender, race, and other identities, agency best practices, and agency practices that may limit the human rights of women and girls (including an analysis of why these practices exist). [FN87]

     The COSW and the CEDAW Task Force have found "that the very process of conducting a CEDAW gender analysis created an awareness of and sensitivity to gender-related issues" at each of the agencies. [FN88] While agency staff

    varied in their understanding of human rights and gender issues, [FN89] they uniformly "appreciated the human rights

    'pro-active' application as being more effective than a reactive discriminatory complaint driven approach." [FN90]

    However, in order to account for varying levels of familiarity with human rights issues and to make the gender analysis guidelines more user-friendly, they were revised after the completion of the initial two agency analyses. [FN91]

     3. Reporting.--While the San Francisco ordinance seeks to secure compliance through reporting, monitoring, and capacity building, it does not contain a coercive threat. One criticism confronted by drafters of the San Francisco ordinance is that difficulties facing experiments in participatory problem solving--such as resistance to altered decisionmaking processes and failure to institutionalize changed practices--are potentially exacerbated when legislation does not explicitly provide for an enforcement mechanism. However, rather than rely upon theories of enforcement and compliance popular within domestic antidiscrimination law, [FN92] San Francisco has turned to the

    arena of international human rights--and in particular a normative model of compliance--for the importation of a regulatory norm. [FN93]

     *784 A normative model of compliance contends that compliance is premised upon the "persuasive power of legitimate legal obligations" or, in other words, motivated by the internalization of rules and norms. [FN94] This

    approach to compliance strikes a balance between its coercive and constitutive powers. [FN95] Proponents of this

    model argue that "the discursive interpretation, elaboration, application, and enforcement of . . . rules, accomplished

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through mostly verbal interchange, is at the heart of the compliance process." [FN96] Norm internalization is

    facilitated by a series of repeated interactions that generate legal rules. Eventually, "this iterative process leads to the reconstitution of the interests and identities of the participants." [FN97] Compliance is thus promoted through

    participatory deliberation, mechanisms of transparency, and capacity building rather than coerced by anticipation of enforcement. [FN98]

     The San Francisco CEDAW ordinance, then, like the United Nations human rights regime it is based upon, does not compel city agencies to follow through on their action plans, but, through monitoring and reporting requirements, seeks to "shape and transform" participants in the problem-solving process. [FN99] Each agency writes a report

    summarizing key findings in terms of its data and analysis to be viewed by the COSW and the CEDAW Task Force, as well as made available to the public. [FN100] The *785 Task Force makes recommendations for each agency based

    on these reports, and the agencies are also instructed to seek input from the public, unions, and community groups. [FN101] Using this feedback, each agency must next formulate recommendations for agency change. [FN102] The

    COSW staff works with each agency to develop this action plan, which should include an outline of specific steps to be taken, delegation of identified tasks, a detailed budget, identification of human resources needed, and a time frame for implementation. [FN103]

     This action plan is then submitted to the San Francisco Board of Supervisors and the CEDAW Task Force, and a public hearing is scheduled before the Finance Committee of the Board of Supervisors. Lastly, the Task Force establishes a timetable for review and monitoring of action plan implementation. [FN104] The designated CEDAW

    ordinance liaison from each agency must report annually to the Task Force on the progress and implementation of its action plan. The Task Force, in turn, reports every six months to the Mayor, the Board of Supervisors, and the COSW on developments in the local implementation of CEDAW. [FN105]

C. Results of Ordinance Implementation to Date

     Although a detailed study of the effects in San Francisco of CEDAW ordinance implementation to date is beyond the scope of this Note, a close read of the reports made available both by the COSW and participating agencies indicates that agencies have taken concrete and significant steps in response to completed gender analyses. However, this does not mean that the city has fully and adequately responded to the mandate of the ordinance. Individual agencies have developed and implemented action plans generated in collaboration with the COSW and the CEDAW Task Force, but it appears that some have chosen merely to add services *786 rather than to change their practices. Finally, while

    recent citywide policy and budget analyses reflect an attempt to bring all city agencies into the gender analysis process, the city has not yet institutionalized a comprehensive mechanism for data gathering and analysis, nor for benchmarking best practices.

     1. Gender Analyses of Individual Agencies.--The first two city agencies selected to undergo gender analysis were the Department of Public Works and the Juvenile Probation Department. The next four agencies selected were the Adult Probation Department, Arts Commission, Department of the Environment, and Rent Stabilization Board. [FN106] These initial analyses revealed a need for education on human rights within the agencies, [FN107] an

    absence of comprehensive data helpful in assessing gender equity, [FN108] a lack of effective recruitment efforts for a

    diverse workforce, [FN109] a need to create meaningful work-life policies, [FN110] and a need to provide

    "professional development and training opportunities" for all employees. [FN111]

     A review of agency action plans suggests that the agencies were responsive to these inadequacies. The Rent Board, for example, planned to revise its service evaluation form to reflect disaggregated data, to track service recipients in order to conduct analyses along race and gender lines, and to add domestic violence to its violence prevention employee policy. [FN112] Recommendations for Adult Probation Department practices included increasing training for Domestic Violence Probation Officers, tracking domestic violence cases and re-offenses, and evaluating its communication with victims and survivors of domestic violence. [FN113] And finally, *787 the Juvenile Probation

    Department sought to explore the possibility of creating an on-site girls' unit staffed by employees trained to work exclusively with young women, increase mental health assessment and services for detained girls, and provide additional gender-specific services for young women (including services for "mental health, sexual assault, domestic violence, parenting and pregnancy prevention, delinquency prevention . . ., substance abuse prevention, education, and transition planning"). [FN114]

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     As noted above, the fact that most of the agencies had not previously collected comprehensive data--and those that did found it difficult to disaggregate the data by gender, race, and other attributes--posed a major obstacle to gender analysis participants. [FN115] The COSW and the CEDAW Task Force found that the "lack of detailed and

    comprehensive data made it impossible to determine if there is bias or even trends in usage that accompany gender differences." [FN116] Agency staff also raised concerns about the legality of asking for the sort of confidential information necessary to disaggregate data, and it has since been decided that "[s]ome legal and political issues must be studied before data collection practices can change citywide." [FN117] This is a problem that San Francisco has yet

    to solve, and it should be addressed earlier and more explicitly in jurisdictions seeking to enact similar legislation.

     2. Citywide Policy Reports.--Implementation of the CEDAW ordinance and the gender analysis process it establishes prompted the COSW to undertake two citywide policy analysis initiatives. The first study and subsequent report focused on work-life policies and practices in city agencies, and the second study and report identified the particular needs of girls within San Francisco.

     a. Work-Life Policies and Practices.--The COSW surveyed sixty-two city agencies on their work-life policies and practices in January 2001, and forty-one agencies responded. [FN118] The survey defined work-life policy as "any

    program that increases an organization's ability to integrate the needs of work and personal life (e.g., self-care, health care, child care, elder care, domestic partner care, education and study, personal life interests)." [FN119] In

    September 2001 the COSW issued the Work-Life Policies & Practices Survey Report, an in depth analysis of the survey results. [FN120] The purpose of the study was to assess existing work-life policies and programs *788 within

    city agencies, to evaluate both the advantages and disadvantages of these practices, and to raise awareness about them. [FN121] The report does not make recommendations as to best practices, noting that such proposals will be included in a future report, along with "an assessment of employees' needs for work-life programs." [FN122]

     The COSW's analysis of survey data highlights four key points concerning the relationship between work-life and family-friendly policies; the viability of telecommuting; gendered implications of work-life policies; and the connection between organizational culture and work-life practices. [FN123] First, the benefits of work-life policies

    are not limited to employees with families, but instead help all employees "to deal with the stresses they confront in their lives and the impacts those stresses have on their job performance." [FN124] Second, as many agencies

    expressed concern for the liability and management issues raised by telecommuting, the report recognizes that to institute successful work-life policies, agencies must cultivate "cultures of flexibility" and "look beyond any one [work-life] practice." [FN125] Third, although child rearing and housework primarily remain the responsibility of women, work-life policies "help women and men to challenge assumptions of a gender-based division of labor." [FN126] And fourth, while agencies should strive to maintain flexibility, a systematic--and not merely ad hoc--approach to work-life practices promotes the success of work-life policies. [FN127]

     b. Girls in San Francisco.--The COSW completed A Report on Girls in San Francisco: Benchmarks for the Future in April 2003. [FN128] While the report acknowledges that it is only a first step in identifying and addressing the varied needs of girls in San Francisco, it aims to serve as "a catalyst for change" and "a stimulus for policy research and implementation." [FN129] It seeks to offer "a detailed and comprehensive description of the status of girls in San Francisco" and "to provide a benchmark against which subsequent progress can be measured." [FN130] The report

    was also intended to serve as "a single resource for information about girls," making the information it gathered more standardized than information gathered from "[myriad] different agencies, each with [its] own data collection methods," and more readily accessible. [FN131]

     *789 The report found that minority girls in San Francisco are disproportionately represented in both the child welfare and juvenile justice systems. [FN132] The COSW declined to make final recommendations on how the city

    should respond to this finding, though stating that there exists "a clear need to review existing services available and their effectiveness for this population of girls," as well as for the child welfare and juvenile justice systems to "coordinate [their] services and resources." [FN133]

     3. Gender Analyses of Budget Cuts.--In response to the positive changes effected by participating agencies, the San Francisco Board of Supervisors recently passed the CEDAW Gender Analysis Resolution, urging city agencies to conduct a gender analysis of their budget cuts. [FN134] The resolution requests that city agencies, "to the extent

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    possible, . . . quantify the impact of the proposed ten percent Fiscal Year 03-04 budget cuts on employment and services to the public, aggregated by gender, race, and other identities" prior to passing the information along to the Board of Supervisors and the COSW. [FN135]

     The CEDAW Gender Analysis Resolution marks the city's first effort to draw all of its agencies into the gender analysis process. [FN136] This resolution is also significant in that, rather than set aside the directive of the ordinance due to current budget crises, it highlights the unwavering commitment of the city government to the CEDAW ordinance and the issues it addresses in the face of the economic difficulties plaguing the city. [FN137]

     The COSW has received responses to the resolution from sixteen agencies, two of which--the Department of Human Services and the Department on the Status of Women--noted that women, and in particular, women of color, would be "severely affected" by the proposed budget cuts. [FN138] However, the majority of responsive agencies "did not think

    the *790 budget cuts would have a disparate impact on any gender, race or other identities," nor did they anticipate any major layoffs or reductions in services. [FN139] In total, based on information provided by the sixteen reporting

    agencies, sixty-five women and fifty men--"primarily employees of color"--will be laid off, and services to women, seniors, and limited- and non-English speakers will be impacted. [FN140]

    III. The New York City Human Rights Initiative: Diffusion of the San Francisco


     San Francisco's CEDAW ordinance experiment has encouraged efforts to pass similar legislation in Los Angeles, San Jose, Santa Rosa, Seattle, Chicago, Atlanta, Boston, and New York City. [FN141] This Part contemplates

    diffusion of the San Francisco model, urging cities implementing similar legislation to ensure the context-specificity of the regulatory scheme they seek to establish. Part III.A examines one possible diffusion strategy for implementation of a similar ordinance in New York City, in order to illustrate the shortcomings of diffusion through replication. Part III.B then begins the crucial task of formulating questions about the San Francisco CEDAW ordinance that may be helpful to other cities in developing a successful strategy for diffusion.

A. Pitfalls of Diffusion Through Replication

     1. The New York City Human Rights Initiative.--In New York City, a coalition of nonprofit organizations (the Coalition) seeks to enact an ordinance similar to that of San Francisco, tentatively titled "The New York City Human Rights Initiative." The Coalition is currently coordinated by Amnesty International's USA's Women's Program, the Urban Justice Center's Human Rights Project, the Women of Color Policy Network at New York University's Robert F. Wagner Graduate School of Public Service, the NOW Legal Defense and Education Fund, and the American Civil Liberties Union, and is collaborating with members of the New York City Council in hopes of introducing the legislation there within the *791 year. [FN142] The Coalition is also "conducting workshops and presentations to

    educate local grass roots and advocacy organizations about the campaign . . . as well as soliciting input from these groups as to what they would like this legislation to achieve." [FN143] It is hoped that the ordinance will "provide

    specific guidelines and tools that incorporate human rights principles, create preventative measures, enable more effective public participation and, ultimately, improve the quality of life for all New Yorkers." [FN144]

     While it is not yet possible to study the New York Human Rights Initiative, as efforts to draft and enact the ordinance are ongoing, it is helpful to consider one aspect of the Coalition's strategy for diffusion of the San Francisco model. In particular, this section focuses on the Coalition's eventual selection of a facilitation and monitoring body for the ordinance. The facilitation and monitoring body, located within city government, would be responsible for assisting agencies in ordinance implementation, as well as for monitoring the adequacy of their responses. This selection process is especially important because the COSW, in its role as the facilitator and monitor of the San Francisco CEDAW ordinance, served as the engine of the entire regulatory endeavor. One possible strategy would target the New York City Commission on Human Rights as a potential site; [FN145] however, the apparent incompatibility of

    the agency's rule-enforcement culture and the participatory problem-solving approach of the proposed ordinance cannot be overlooked.

     2. Current Role of the New York City Commission on Human Rights.--The New York City Commission on Human Rights (CCHR) and the City Law Department are the two local agencies granted authority to prevent and remedy discrimination by the New York City Human Rights Law. [FN146] *792 The New York City Human Rights Law

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    grants the CCHR the "power to eliminate and prevent discrimination from playing any role in actions relating to employment, public accommodations, and housing and other real estate." [FN147] The CCHR investigates and

    prosecutes an average of approximately 1000 complaints per year of discrimination in employment, housing, and public accommodations, as well as bias-related harassment. [FN148] In addition, the CCHR "initiates investigations

    and prosecutions of systemic [City] Human Rights Law violations." [FN149] The Law Department *793 is

    exclusively responsible for cultivating and prosecuting cases of pattern-and-practice discrimination. [FN150]

     In 2001, the Committee on Civil Rights of the Association of the Bar of the City of New York (ABCNY) issued a report detailing the prevalence of discrimination in the City, the crippled state of the CCHR, and the need for major reform within the agency. [FN151] The report described the CCHR as crippled by budget cuts, understaffed, and

    overworked. It went on to outline the failures of the agency--including insufficient information gathering and a limited capacity for deterrence--as well as to make suggestions for its rejuvenation. Suggestions for improving the CCHR included more vigorous enforcement of the City Human Rights Law, a focus on the development and prosecution of systemic discrimination cases, better collaboration between city agencies, and increased publicity around the City Human Rights Law and the role of the CCHR. The authors emphatically supported reframing discrimination as a law enforcement issue, [FN152] arguing that the threat of sanction is necessary to improve

    deterrence. [FN153]

     In response to the severity of the criticisms leveled by the ABCNY report, Mayor Michael R. Bloomberg signaled a commitment to revitalizing the CCHR and to preventing and combating discrimination within the city by revamping the CCHR, increasing its budget, [FN154] and responding to several of the proposals put forward in the ABCNY

    report. [FN155] The Mayor was particularly enthusiastic about appointing Patricia L. Gatling *794 to chair the CCHR,

    characterizing her as an experienced prosecutor determined to get serious about enforcement of the City Human Rights Law. [FN156] Commissioner Gatling echoed Mayor Bloomberg's public resolve to strengthen the city's antidiscrimination measures, informing the City Council that "[c]reating and maintaining an open city in terms of housing, lending, employment, and public accommodations is a critical part of attracting businesses and individuals to New York City and keeping them here." [FN157]

     In February 2002, when Commissioner Gatling was appointed, the CCHR had a backlog of approximately 5000 cases. Within a year she and her staff were able to cut that figure down to under 1000. [FN158] Mayor Bloomberg has

    attributed this success to the CCHR's commitment to "thoroughly reviewing the merits of all 5,000 cases, retraining attorneys and investigators, and beginning complaint investigations at the intake stage, rather than waiting several months until all legal documents are received." [FN159] To the extent that concerns about the agency's performance

    remain, [FN160] those concerns would be built into the Coalition's selection *795 of the CCHR as the facilitation and

    monitoring body for the ordinance. More importantly, the Mayor's endorsement of an enforcement approach and the presence of a prosecutor at the helm of the agency clearly signal the regulatory strategy the agency is likely to pursue under current leadership.

     3. The CCHR as Facilitation and Monitoring Body.--In drafting the New York City Human Rights Initiative, the question of where to locate the facilitation and monitoring body for the ordinance is an important one, and one that must be situated within the political landscape of the city. While the impulse to identify the most prominent agency in the city dealing with the regulatory issue at stake--here, human rights--and designate it as the facilitator and monitor is understandable, this strategy would fail to account for the incongruity of the CCHR's culture and the philosophy of governance essential to the ordinance. In particular, the CCHR's prosecutorial responsibilities would pose a potential role conflict should it serve as the facilitator of a collaborative problem-solving initiative.

     Recently, New York City Council members have emphasized the importance of enforcement to lawmakers within the city, asserting that legislation without adequate enforcement lacks impact. [FN161] This concern with

    enforcement dovetails with recent statements by Mayor Bloomberg framing discrimination as a law enforcement issue and pledging to improve enforcement of the New York City Human Rights Law. [FN162] Bloomberg's appointment

    of CCHR Commissioner Gatling signified to many that "from now on the agency will be focusing on law enforcement rather than mediation or community relations." [FN163] This view of the appointment was strengthened by Gatling's

    pledge "to prosecute discriminators to the fullest extent of the law," [FN164] and by her presence--along with police

    and fire officials--at the Mayor's year-end briefing on public safety. [FN165]

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