Although intended to be less intimidating than a court proceeding, the process by which the New York State Division of Human Rights (the Division) handles complaints can be opaque and intimidating to many individuals, employers and other organizations. This article is intended to demystify things a bit.
Who Can Complain
Individuals who were harassed or discriminated against in employment, education, housing, or places of public accommodation based on a protected characteristic can, by themselves or through an attorney, file a complaint with the Division. The list of protected characteristics under New York State law includes age, creed, color, disability, domestic violence victim status, gender identity or expression, familial status, marital status, military status, national origin, predisposing genetic characteristics, pregnancy-related condition, prior arrest or conviction record, race, sex, and sexual orientation, as well as retaliation for opposing unlawful discriminatory practices based on any of those characteristics. The Division will consider complaints where the alleged harassment or discrimination occurred in New York or involved a New York entity, as well as claims against out-of-state entities that are filed by New York State residents.
A complaint must be filed with the Division within one year of the discrimination or harassment taking place. The Division’s complaint forms are available on its website. They require contact information for the complainant and the individual or entity who allegedly engaged in the harassment or discrimination (the respondent), as well as a description of what happened and other relevant information that the complainant believes the Division should consider.
After Submission of the Complaint
The Division will promptly investigate the complaint, which begins with sending a copy of the complaint to the respondent and relevant parties. The respondent will usually be asked to submit a response to the complaint, explaining what occurred and why the Division should conclude that the conduct complained of does not violate the state’s Human Rights Law. The Division may also interview witnesses or subpoena documents.
Unless extended, within 180 days after the complaint is filed the Division will determine whether it has a right to resolve the issue and whether there is “probable cause” to believe that the respondent engaged in unlawful discriminatory behavior. “Probable cause” is not specifically defined by the Division’s processes but it generally means that the Division has found reason to believe discrimination or harassment may have occurred. If the Division determines that it lacks the right to resolve the issue (such as because neither of the parties have any connection to New York) or that there is no probable cause, it will dismiss the complaint. Once dismissed for lack of probable cause, the complainant can file a court action to challenge the Division’s determination, but the complainant cannot assert the same claim in state court. This is called an “election of remedies.” If the Division finds that there is probable cause, the matter will be referred for a formal hearing before a hearing examiner.
Negotiating a Resolution
The parties may at any time seek to negotiate a settlement of the complaint, either with the Division’s involvement or on their own. The terms of any settlement reached need to be shared with the Division, which will make the settlement part of a final order consenting to the termination of the proceeding. Private settlements are impermissible for complaints filed after October 12, 2021. If the settlement is negotiated after the Division has issued a finding of probable cause, then the Division also has to consent to the terms of the settlement.
Following a finding of probable cause, the Division itself may initiate a conciliation process and will at least schedule a settlement conference before the hearing to work with the parties on reaching a conciliation agreement or settlement. This may involve requiring the respondent to stop certain actions, and it may include monetary payment to the complainant. The Division keeps confidential the discussions had during the conciliation process, but the final terms of the agreement are made part of the Division’s final order terminating the proceeding.
The hearing is generally scheduled to occur within 90 days after the finding of probable cause, but this may be extended based on the Division’s caseload. The respondent is required to submit a formal answer to the complaint prior to the hearing. There is no formal discovery, but the parties each have the right to review the Division’s file prior to the hearing.
The case is presented by an attorney of the Division. The complainant can directly participate in that process or retain an attorney to present the complainant’s case. As stated in the Division’s
FAQs, because the Division has an interest in vindicating the human rights of New Yorkers, a member of the Division staff will assist complainants throughout the hearing process, free of charge.
The respondent does not receive that same support from the Division. Rather, the respondent has the right to retain an attorney to assist in responding to the complaint.
All parties are allowed to present their account, present supporting documents, and introduce and cross-examine witnesses. If the respondent does not answer the complaint, the hearing will proceed anyway, and if there is no response submitted, the hearing examiner may enter a judgment by default against the respondent.
Within 180 days after the hearing, the commissioner will issue a determination as to whether there has been unlawful discrimination. If discrimination is found, the commissioner may order any of the following actions:
- Require the respondent to stop engaging in the unlawful discriminatory practice;
- Require the respondent to take necessary action to remedy the issue;
- Award compensatory damages or (in the case of employment discrimination only) punitive damages;
- Impose civil fines and penalties not to exceed $50,000 (or $100,000 if the discrimination was willful or malicious);
- Require a report of compliance; and
- Award reasonable attorney’s fees to the complainant if the complainant requests it.
Where remedial action is ordered, the Division will also follow up to ensure the respondent is complying. If the commissioner concludes there has been no unlawful discrimination, those findings will be sent to the parties and the complaint will be dismissed.
In general, information submitted to the Division in the course of investigating a complaint and in the hearing process is confidential as to others who are not party to the proceedings, unless the complainant consents to the release of specific information. However, complaints filed with the Division are subject to the Freedom of Information Law, which means that, in response to a specifically submitted request, the Division may be required to provide a copy of its records to the requesting party. The Division may redact certain information as part of its response, consistent with the parameters of FOIL.
Under these circumstances, an organization could potentially learn if an individual has any previously-filed discrimination complaints. As a practical matter, however, organizations do not typically conduct such inquiries in relation to any specific individual. Moreover, any organization that considered an individual’s complaint with the Division as a basis for an employment, educational, or other covered decision would face independent liability for retaliation under the Human Rights Law.
By Tracey I. Levy and Julie Ficks