2019 New York Laws
EXC - Executive
Article 15 - Human Rights Law
297 - Procedure.

Universal Citation: NY Exec L § 297 (2019)
§ 297. Procedure.    1.  Any  person  claiming  to  be aggrieved by an
unlawful discriminatory practice may, by himself or herself  or  his  or
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 employment discrimination
related to private employers, and, in cases of  housing  discrimination,
with  damages in housing discrimination cases 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.
  * NB Effective until August 12, 2020
  * 5.  Any  complaint  filed  pursuant to this section must be so filed
within one year after the alleged unlawful discriminatory  practice.  In
cases  of  sexual harassment in employment, any complaint filed pursuant
to this section must be so filed within three years  after  the  alleged
unlawful discriminatory practices.
  * NB Effective August 12, 2020
  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  employment
discrimination related to private employers and  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 all cases of housing discrimination and housing
related credit discrimination 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; and
with respect to a claim of credit discrimination where sex is a basis of
such  discrimination,  and  with  respect  to  all  claims of employment
discrimination 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
attributable  to  such claim to any 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  cases  of  employment discrimination, a

respondent  shall  only  be  liable  for  attorney's  fees  under   this
subdivision if the respondent has been found liable for having committed
an  unlawful  discriminatory  practice.  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.

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