Footnote 16: Judith J. Johnson, License to Harass Women: Requiring Hostile Environment Sexual Harassment to be "Severe or Pervasive" Discriminates among "Terms and Conditions" of Employment, 62 Md L Rev 85, 87 (2003).
Footnote 17: Id. at 111-134 (describing a variety of techniques by which claims have been turned away using "severe or pervasive" as a shield for discriminators).
Footnote 18: (See Committee Report, 2005 NY City Legis Ann, at 537.) Importantly, the way that the Council responded to McGrath was not by dealing with the specific topic of the case (the availability of attorney's fees in circumstances where only nominal damages are awarded), but by changing the method of analysis applicable to all provisions of the law. McGrath, of course, was also explicitly mentioned on the floor of the City Council as one of the cases that, with the passage of the Restoration Act, would—in Council Member Palma's words—"no longer hinder the vindication of our civil rights" (see text preceding footnote 3, supra). In light of the foregoing, it is puzzling that Gallo would make the identical Council "could have done so" argument already specifically rejected by the Restoration Act (see 585 F Supp 2d at 537).
Footnote 19: See also page 4 of the Bar Association letter (supra at footnote 7), reciting the expectation that the undoing of narrow construction of the law by legislative amendment "should no longer be necessary" if there is judicial appreciation for the Restoration Act's intention that the law provide "the greatest possible protection for civil rights," and page 5 of the Brennan Center statement (same footnote), noting the suggestion that