New York Employment Attorney Blog
Navigating the different statutes applicable to employment discrimination can be daunting. Prior to meeting with an attorney, you can familiarize yourself with the laws that may apply to your situation. Of course, you should consult an attorney regarding your own individual situation.
(a) Scope
The New York State Human Rights Law (“NYSHRL”) applies to employers with four or more employees. Under certain circumstances, individual supervisors may also be sued under the NYSHRL.
The NYSHRL prohibits discrimination based on age, race, color, religion, national origin, sex, sexual orientation, disability, genetic predisposition or carrier status, marital status, and previous arrest record. The NYSHRL also prohibits retaliation for making good faith complaints of employment discrimination.
(b) Jurisdiction/Forum
A claimant wishing to assert claims under the NYSHRL may elect to pursue his or her claim either in court or before the New York State Division of Human Rights (“SDHR”). In this respect, the NYSHRL is different from the federal antidiscrimination statutes, which require a filing with the Equal Employment Opportunity Commission prior to commencing a civil action.
1. Civil Actions.
A claimant who elects to file a court action may do so in state supreme court or in federal district court assuming the district court chooses to exercise supplemental jurisdiction over the NYSHRL claim.
The statute of limitations for civil actions arising under the NYSHRL is three years, and begins to run once the plaintiff is made aware of the alleged discriminatory act. In certain circumstances, where the discriminatory actions are continuing, courts have allowed events that transpired more than three years prior to the filing of a civil action to be deemed timely.
Remedies include reinstatement, back pay, front pay and compensatory damages. Neither punitive damages nor attorneys’ fees nor costs are recoverable.
2. State Division of Human Rights.
The SDHR acts as an investigative and adjudicative agency. With respect to its adjudicative function, the SDHR resolves complaints by conducting public hearings before administrative law judges. The SDHR does not litigate claims in court on behalf of claimants, unlike the EEOC.
A claimant can file a complaint with the SDHR, or the SDHR may process, on its own initiative, its own complaint. Prior to a public hearing, a claimant is entitled to amend his or her complaint, provided that the amendments are fair and reasonable. Once a public hearing is commenced, however, a complaint may only be amended at the administrative law judge’s discretion.
The limitations period for filing a complaint with the SDHR is one year (unlike the three year statute of limitations for court actions alleging violations of the NYSHRL).
Once a complaint is filed, an investigation should be commenced by the SDHR. Although the NYSHRL requires that SDHR investigations be completed within 180 days of the filing of the complaint, it is not uncommon for investigations to last longer than that. The SDHR’s investigation includes requiring the employer to produce documents and information and to provide a position statement setting forth the employer’s response to the claimant’s allegations of discrimination. The SDHR is also empowered to subpoena documents and witnesses. The SDHR may also conduct interviews of the employer.
Prior to rendering a determination on a complaint, the SDHR may attempt to encourage the parties to engage in a conciliation conference for purposes of settling the matter. Indeed, the SDHR may dismiss a complaint if it determines that the complainant has unreasonably rejected a fair settlement.
At the conclusion of its investigation, the SDHR may dismiss a complaint for a number of reasons such as, lack of jurisdiction, no probable cause, or for administrative convenience. If the SDHR believes that it is more likely than not that the claimant’s allegations of discrimination are true, it will issue a “probable cause” determination. The SDHR may again attempt to assist the parties in settling the matter.
If the complaint is dismissed based on a finding of no probable cause, the claimant may petition the state supreme court for relief. If the court affirms the no probable cause finding, res judicata will bar a subsequent claim.
If the SDHR finds probable cause and subsequent to the regional director’s review, the matter is scheduled for a public hearing. An employer-respondent is entitled to seek judicial review of a probable cause determination.
Once the parties receive notice of the public hearing, the employer-respondent must file an answer to the complaint at least two business days prior to the hearing date. Generally, discovery prior to the hearing is not available, unless ordered by the administrative law judge assigned to the matter. The administrative law judge may, among other things, call and question witnesses, propose settlements, and place evidence into the record sua sponte. A claimant may be represented by private counsel, or an SDHR attorney (no attorney-client privilege attaches). No formal rules of evidence apply in such public hearings. Accordingly, hearsay is fully admissible.
At the conclusion of the public hearing, the administrative law judge’s recommended decision is submitted to the SDHR Commissioner, who is authorized to award legal and equitable relief, including, reinstatement, back pay, and compensatory damages. Parties may submit objections to the recommended decision. Once the Commissioner’s decision is final, parties may appeal to the appellate division of the supreme court in the judicial department embracing the county in which the proceeding was commenced.