2013 New York Consolidated Laws
EXC - Executive
Article 15 - (290 - 301) HUMAN RIGHTS LAW
297 - Procedure.

 
    § 297. Procedure.  1.  Any  person  claiming  to  be  aggrieved  by an
  unlawful discriminatory practice may, by himself or herself or  his  her
  attorney-at-law,  make,  sign  and  file  with  the  division a verified
  complaint in writing which shall state  the  name  and  address  of  the
  person  alleged  to  have committed the unlawful discriminatory practice
  complained of and which shall set  forth  the  particulars  thereof  and
  contain  such  other information as may be required by the division. The
  commissioner of labor or the attorney  general,  or  the  chair  of  the
  commission on quality of care for the mentally disabled, or the division
  on  its  own  motion  may,  in  like  manner,  make,  sign and file such
  complaint. In connection with the filing of such complaint, the attorney
  general is authorized to take  proof,  issue  subpoenas  and  administer
  oaths  in  the  manner provided in the civil practice law and rules. Any
  employer whose employees, or some of them, refuse or threaten to  refuse
  to  cooperate  with  the  provisions  of this article, may file with the
  division a verified complaint asking for assistance by  conciliation  or
  other remedial action.
    2.  a.  After the filing of any complaint, the division shall promptly
  serve a copy thereof upon the respondent and all persons it deems to  be
  necessary   parties,   and   make  prompt  investigation  in  connection
  therewith. Within one hundred eighty days after a  complaint  is  filed,
  the  division  shall  determine  whether it has jurisdiction and, if so,
  whether there is probable cause to believe that the person named in  the
  complaint,  hereinafter referred to as the respondent, has engaged or is
  engaging in an  unlawful  discriminatory  practice.  If  it  finds  with
  respect  to  any  respondent that it lacks jurisdiction or that probable
  cause does not exist, the commissioner  shall  issue  and  cause  to  be
  served  on  the  complainant an order dismissing such allegations of the
  said complaint as to such respondent.
    b. Notwithstanding the provisions of paragraph a of this  subdivision,
  with  respect  to  housing  discrimination only, after the filing of any
  complaint, the division shall, within thirty days after receipt, serve a
  copy thereof upon  the  respondent  and  all  persons  it  deems  to  be
  necessary   parties,   and   make  prompt  investigation  in  connection
  therewith. Within one hundred days  after  a  complaint  is  filed,  the
  division shall determine whether it has jurisdiction and, if so, whether
  there  is  probable  cause  to  believe  that  the  person  named in the
  complaint, hereinafter referred to as the respondent, has engaged or  is
  engaging  in  an  unlawful  discriminatory  practice.  If  it finds with
  respect to any respondent that it lacks jurisdiction  or  that  probable
  cause  does  not  exist,  the  commissioner  shall issue and cause to be
  served on the complainant an order dismissing such  allegations  of  the
  said complaint as to such respondent.
    3. a. If in the judgment of the division the circumstances so warrant,
  it  may,  at  any  time  after  the filing of the complaint, endeavor to
  eliminate  such  unlawful   discriminatory   practice   by   conference,
  conciliation  and  persuasion. Each conciliation agreement shall include
  provisions requiring the respondent to refrain from  the  commission  of
  unlawful  discriminatory  practices  in  the future and may contain such
  further  provisions  as  may  be  agreed  upon  by  the  division,   the
  complainant,  and the respondent, including a provision for the entry in
  the supreme court in any county  in  the  judicial  district  where  the
  alleged  unlawful  discriminatory  practice  was committed, or where any
  respondent resides  or  maintains  an  office  for  the  transaction  of
  business,  or  where the housing accommodation, land or commercial space
  specified in the complaint is located, of a consent decree embodying the
  terms of the conciliation agreement. The  division  shall  not  disclose
  what has transpired in the course of such endeavors.

    b.  If  a  conciliation  agreement is entered into, the division shall
  issue an order embodying such agreement and serve a copy of  such  order
  upon  all  parties  to  the  proceeding,  and  if  a  party  to any such
  proceeding is a regulated creditor, the division shall forward a copy of
  the order embodying such agreement to the superintendent.
    c. If the division finds that noticing the complaint for hearing would
  be undesirable, the division may, in its unreviewable discretion, at any
  time prior to a hearing before a hearing examiner, dismiss the complaint
  on  the  grounds  of  administrative  convenience.  However, in cases of
  housing discrimination only,  an  administrative  convenience  dismissal
  will  not  be  rendered  without  the  consent  of  the complainant. The
  division may, subject to judicial review, dismiss the complaint  on  the
  grounds  of  untimeliness if the complaint is untimely or on the grounds
  that the election of remedies is annulled.
    4. a. Within two hundred seventy days after a complaint is  filed,  or
  within one hundred twenty days after the court has reversed and remanded
  an order of the division dismissing a complaint for lack of jurisdiction
  or  for  want  of  probable cause, unless the division has dismissed the
  complaint or issued  an  order  stating  the  terms  of  a  conciliation
  agreement  not  objected to by the complainant, the division shall cause
  to be issued and served a written notice, together with a copy  of  such
  complaint,  as  the same may have been amended, requiring the respondent
  or respondents to answer the charges of such complaint and appear  at  a
  public  hearing  before  a hearing examiner at a time not less than five
  nor more than fifteen days after such service and at a place to be fixed
  by the division and specified in such notice.  The  place  of  any  such
  hearing  shall  be the office of the division or such other place as may
  be designated by the division. The case  in  support  of  the  complaint
  shall  be  presented  by  one of the attorneys or agents of the division
  and, at the option of the complainant, by his or her attorney. With  the
  consent  of  the division, the case in support of the complainant may be
  presented solely by his or  her  attorney.  No  person  who  shall  have
  previously  made the investigation, engaged in a conciliation proceeding
  or caused the notice to be issued shall act as  a  hearing  examiner  in
  such  case.  Attempts at conciliation shall not be received in evidence.
  At least two business days prior to the hearing  the  respondent  shall,
  and  any  necessary  party  may, file a written answer to the complaint,
  sworn to subject to the penalties of  perjury,  with  the  division  and
  serve  a copy upon all other parties to the proceeding. A respondent who
  has filed an answer, or whose default in answering has  been  set  aside
  for  good cause shown may appear at such hearing in person or otherwise,
  with or without counsel, cross examine witnesses and the complainant and
  submit testimony. The complainant and all parties shall  be  allowed  to
  present  testimony  in person or by counsel and cross examine witnesses.
  The hearing examiner may in his or her discretion permit any person  who
  has  a  substantial  personal  interest to intervene as a party, and may
  require that necessary  parties  not  already  parties  be  joined.  The
  division  or  the complainant shall have the power reasonably and fairly
  to amend any complaint, and the respondent and  any  other  party  shall
  have  like  power to amend his or her answer. The hearing examiner shall
  not be bound by the strict rules of evidence prevailing in courts of law
  or equity. The testimony taken at the hearing shall be under oath and  a
  record made.
    b.  If  the  respondent  fails  to  answer  the complaint, the hearing
  examiner designated to conduct the hearing may enter the default and the
  hearing shall proceed on the evidence in support of the complaint.  Such
  default  may be set aside only for good cause shown upon equitable terms
  and conditions.

    c. Within one hundred eighty  days  after  the  commencement  of  such
  hearing,   a  determination  shall  be  made  and  an  order  served  as
  hereinafter provided. If, upon all the  evidence  at  the  hearing,  the
  commissioner  shall  find  that a respondent has engaged in any unlawful
  discriminatory  practice  as  defined  in this article, the commissioner
  shall state findings of fact and shall issue and cause to be  served  on
  such respondent an order, based on such findings and setting them forth,
  and including such of the following provisions as in the judgment of the
  division  will  effectuate  the  purposes of this article: (i) requiring
  such respondent to cease and desist from  such  unlawful  discriminatory
  practice;  (ii)  requiring  such  respondent  to  take  such affirmative
  action,  including  (but  not  limited  to)  hiring,  reinstatement   or
  upgrading  of  employees,  with  or  without  back  pay,  restoration to
  membership  in  any  respondent  labor  organization,  admission  to  or
  participation  in  a  guidance program, apprenticeship training program,
  on-the-job training program or other occupational training or retraining
  program, the extension of full, equal and  unsegregated  accommodations,
  advantages,  facilities  and  privileges  to  all  persons, granting the
  credit which was the subject of any complaint, evaluating applicants for
  membership in a place of accommodation without discrimination  based  on
  race,  creed, color, national origin, sex, disability or marital status,
  and  without  retaliation  or  discrimination  based  on  opposition  to
  practices forbidden by this article or filing a complaint, testifying or
  assisting  in  any  proceeding  under  this  article;  (iii) awarding of
  compensatory damages to the person  aggrieved  by  such  practice;  (iv)
  awarding  of  punitive damages, in cases of housing discrimination only,
  in an amount not to exceed ten thousand dollars, to the person aggrieved
  by such practice; (v) requiring payment to the state of profits obtained
  by a respondent through the commission of unlawful  discriminatory  acts
  described  in  subdivision  three-b of section two hundred ninety-six of
  this article; and (vi) assessing civil fines and penalties, in an amount
  not to exceed fifty thousand dollars, to be  paid  to  the  state  by  a
  respondent  found  to  have committed an unlawful discriminatory act, or
  not to exceed one hundred thousand dollars to be paid to the state by  a
  respondent  found to have committed an unlawful discriminatory act which
  is found to be willful, wanton or malicious; (vii) requiring a report of
  the manner of compliance. If, upon all the  evidence,  the  commissioner
  shall  find  that  a  respondent  has  not  engaged in any such unlawful
  discriminatory practice, he or she shall  state  findings  of  fact  and
  shall  issue and cause to be served on the complainant an order based on
  such findings and setting them forth dismissing the said complaint as to
  such respondent. A copy of each order issued by the  commissioner  shall
  be  delivered  in  all  cases  to the attorney general, the secretary of
  state, if he or she has issued a license to  the  respondent,  and  such
  other  public  officers  as  the  division deems proper, and if any such
  order issued by the commissioner  concerns  a  regulated  creditor,  the
  commissioner   shall   forward   a   copy  of  any  such  order  to  the
  superintendent. A copy of any complaint filed against any respondent who
  has  previously  entered  into  a  conciliation  agreement  pursuant  to
  paragraph  a of subdivision three of this section or as to whom an order
  of the division has previously been entered pursuant to  this  paragraph
  shall be delivered to the attorney general, to the secretary of state if
  he  or  she  has  issued  a  license to the respondent and to such other
  public officers as the division deems proper, and if any such respondent
  is a regulated creditor, the commissioner shall forward a  copy  of  any
  such complaint to the superintendent.
    d.  The division shall establish rules of practice to govern, expedite
  and effectuate the foregoing procedure and its own actions thereunder.

    e. Any civil penalty imposed pursuant to  this  subdivision  shall  be
  separately  stated, and shall be in addition to and not reduce or offset
  any other damages or payment imposed upon a respondent pursuant to  this
  article.  In  cases  of employment discrimination where the employer has
  fewer  than  fifty  employees, such civil fine or penalty may be paid in
  reasonable installments, in accordance with regulations  promulgated  by
  the  division.  Such regulations shall require the payment of reasonable
  interest resulting from the delay, and in no case permit installments to
  be made over a period longer than three years.
    5. Any complaint filed pursuant to  this  section  must  be  so  filed
  within one year after the alleged unlawful discriminatory practice.
    6.  At  any  time  after  the  filing of a complaint with the division
  alleging an unlawful discriminatory practice under this article, if  the
  division determines that the respondent is doing or procuring to be done
  any  act  tending  to  render ineffectual any order the commissioner may
  enter in such proceeding, the commissioner  may  apply  to  the  supreme
  court  in  any county where the alleged unlawful discriminatory practice
  was committed, or where any respondent resides or  maintains  an  office
  for the transaction of business, or if the complaint alleges an unlawful
  discriminatory practice under subdivision two-a or paragraph (a), (b) or
  (c)  of  subdivision  five  of  section  two  hundred ninety-six of this
  article, where the  housing  accommodation,  land  or  commercial  space
  specified  in  the complaint is located, or, if no supreme court justice
  is available in such county, in any other  county  within  the  judicial
  district,  for an order requiring the respondents or any of them to show
  cause why they should not be enjoined from doing or procuring to be done
  such act. The order to show cause may contain  a  temporary  restraining
  order  and shall be served in the manner provided therein. On the return
  date of the order to show cause, and  after  affording  all  parties  an
  opportunity  to be heard, if the court deems it necessary to prevent the
  respondents from rendering ineffectual an order relating to the  subject
  matter of the complaint, it may grant appropriate injunctive relief upon
  such terms and conditions as it deems proper.
    7.  Not  later than one year from the date of a conciliation agreement
  or an order issued under this section, and at any  other  times  in  its
  discretion,  the  division  shall  investigate whether the respondent is
  complying with the terms of such agreement or order. Upon a  finding  of
  non-compliance,  the  division  shall  take appropriate action to assure
  compliance.
    8. No officer, agent or employee of the  division  shall  make  public
  with respect to a particular person without his consent information from
  reports obtained by the division except as necessary to the conduct of a
  proceeding under this section.
    9.  Any  person claiming to be aggrieved by an unlawful discriminatory
  practice shall have a cause  of  action  in  any  court  of  appropriate
  jurisdiction  for damages, including, in cases of housing discrimination
  only, punitive damages, and such other remedies as may  be  appropriate,
  including  any civil fines and penalties provided in subdivision four of
  this section, unless such person had filed a complaint hereunder or with
  any local  commission  on  human  rights,  or  with  the  superintendent
  pursuant  to  the provisions of section two hundred ninety-six-a of this
  chapter, provided that, where the division has dismissed such  complaint
  on  the  grounds  of  administrative  convenience,  on  the  grounds  of
  untimeliness, or on  the  grounds  that  the  election  of  remedies  is
  annulled,  such  person shall maintain all rights to bring suit as if no
  complaint had been filed with the division.  At  any  time  prior  to  a
  hearing  before a hearing examiner, a person who has a complaint pending
  at the division may request that the division dismiss the complaint  and

  annul his or her election of remedies so that the human rights law claim
  may  be  pursued  in  court,  and  the  division may, upon such request,
  dismiss the complaint on the grounds that such person's election  of  an
  administrative  remedy  is  annulled. Notwithstanding subdivision (a) of
  section two hundred four of the civil  practice  law  and  rules,  if  a
  complaint  is so annulled by the division, upon the request of the party
  bringing such complaint before the  division,  such  party's  rights  to
  bring  such  cause  of action before a court of appropriate jurisdiction
  shall be limited by the statute of limitations in effect in  such  court
  at  the  time  the  complaint was initially filed with the division. Any
  party to a housing discrimination complaint shall have the right  within
  twenty  days  following  a  determination  of probable cause pursuant to
  subdivision two of this section to elect to have an action commenced  in
  a civil court, and an attorney representing the division of human rights
  will  be  appointed  to  present  the  complaint  in court, or, with the
  consent of the division, the case  may  be  presented  by  complainant's
  attorney.   A  complaint  filed  by  the  equal  employment  opportunity
  commission to comply with the requirements of 42 USC 2000e-5(c)  and  42
  USC  12117(a)  and  29  USC  633(b) shall not constitute the filing of a
  complaint within the meaning of this  subdivision.  No  person  who  has
  initiated  any action in a court of competent jurisdiction or who has an
  action pending before any administrative agency under any other  law  of
  the  state  based  upon an act which would be an unlawful discriminatory
  practice under this article, may file a complaint with  respect  to  the
  same   grievance  under  this  section  or  under  section  two  hundred
  ninety-six-a of this article.
    10. With respect to cases of housing discrimination only, in an action
  or  proceeding  at  law  under  this  section  or  section  two  hundred
  ninety-eight  of  this article, the commissioner or the court may in its
  discretion  award  reasonable  attorney's  fees  to  any  prevailing  or
  substantially  prevailing  party;  provided,  however, that a prevailing
  respondent or defendant in order to recover such  reasonable  attorney's
  fees must make a motion requesting such fees and show that the action or
  proceeding  brought  was  frivolous;  and  further  provided  that  in a
  proceeding brought in the division of human rights, the commissioner may
  only award attorney's fees as part of  a  final  order  after  a  public
  hearing  held  pursuant  to subdivision four of this section. In no case
  shall attorney's fees be awarded to the division, nor shall the division
  be  liable  to  a  prevailing  or  substantially  prevailing  party  for
  attorney's  fees,  except  in a case in which the division is a party to
  the action or the proceeding in the division's capacity as an  employer.
  In  order to find the action or proceeding to be frivolous, the court or
  the commissioner must find in writing one or more of the following:
    (a) the action or proceeding was commenced, used or continued  in  bad
  faith, solely to delay or prolong the resolution of the litigation or to
  harass or maliciously injure another; or
    (b)  the  action or proceeding was commenced or continued in bad faith
  without any reasonable basis and could not be supported by a good  faith
  argument  for an extension, modification or reversal of existing law. If
  the action or proceeding was promptly discontinued  when  the  party  or
  attorney  learned  or  should have learned that the action or proceeding
  lacked such a reasonable basis, the court may find that the party or the
  attorney did not act in bad faith.