Primer on Employment-Law Processes
Question: Can you give us a primer on the similarities and differences of employment-law process and practice when it comes to claims before the New York State Human Rights Law and the Equal Employment Opportunity Commission? Can you also explain how these processes are different when we are dealing with discrimination cases that are in federal court?
By Keisha-Ann G. Gray
Answer: In addition to various differences in the substantive law between the federal, state and city statutes, there are significant differences in timing, process and outcomes that any employer or HR professional should be aware of.
Differences in Substantive Law
Federal law includes Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Genetic Information Nondiscrimination Act. These laws collectively prohibit employment discrimination on the ground of race, color, religion, sex/gender, national origin, age and disability. Title VII, the ADA and GINA cover employers with 15 or more employees, while the ADEA covers employers with 20 or more employees. All of these federal laws permit a plaintiff who successfully proves they were subjected to discrimination to recover economic damages (including back pay, front pay and any other monetary losses), compensatory damages (e.g., emotional distress), punitive damages and attorneys' fees.
The NYSHRL, however, is much broader than federal law. It prohibits discrimination on all of the federal grounds as well as several additional grounds. These additional grounds include sexual orientation, marital status, familial status, domestic violence victim status, arrest or conviction record, and predisposing genetic characteristics. The NYSHRL covers employers with as few as 4 employees for most cases, and covers ALL employers (even those with fewer than four employees) for sex discrimination and harassment cases only. Unlike federal law, the NYSHRL does not allow for the recovery of punitive damages or attorneys' fees, except in sex discrimination and harassment cases and in such cases only attorneys fees are permitted to be recovered. Another way that the NYSHRL differs from federal law is in the fact that it permits the recovery of civil penalties that the State Division of Human Rights can order. However, these penalties are paid to the State Division rather than the individual victim for most cases. In terms of determining liability, discrimination claims brought under the NYSHRL are analyzed the same way as those brought under federal law.
It's important to note that the city law (the NYCHRL) is even broader than its state (NYSHRL) counterpart. The city law offers all the protections offered under the NYSHRL but is even more expansive, as it also protects gender identity, stalking, sex offenses, unemployment status, caregiver status and credit history. The city law allows for the recovery of punitive damages and attorneys' fees (in addition to economic and compensatory damages), and, unlike Title VII law, for example, it has no cap on compensatory damages. Perhaps most importantly, however, the standard for determining liability is very different under city law than under state and federal law. Since the First Department's seminal case of Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep't 2009), most New York City-based courts have analyzed claims under the NYCHRL separately from those brought under Title VII of the Civil Rights Act or the NYSHRL. Whereas courts generally evaluate Title VIII or NYSHRL harassment claims under a "severe or pervasive standard," the First Department in Williams found that, in light of the City's Local Civil Rights Restoration Act of 2005, harassment claims brought under the NYCHRL must proceed to trial unless the defendant can affirmatively establish "that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider 'petty slights and trivial inconveniences.' " Id. at 80. Likewise, retaliation claims brought under the NYCHRL need only show that alleged retaliatory conduct has only a "chilling effect" on employees' exercise of their rights, unlike the NYSHRL and federal law which require a materially adverse change in terms and conditions of employment. Id. at 71.
Claimants must file their charge with the EEOC within 180 calendar days of the alleged discriminatory act. If, however, a state or local agency also enforces a law that prohibits discrimination on the same basis, then the deadline is extended to 300 calendar days.
New York State Department of Human Resources
The NYSDHR permits claimants to file within one year. The State Division generally moves fairly quickly toward investigating complaints, whereas complaints filed with the EEOC tend to go years before they are actually investigated. Because the EEOC has a huge backlog of cases, it's not unusual for cases to wait for months, and in some cases years, with little or no activity. The State Division, however, has 11 offices throughout New York State and has an unofficial mandate from the governor to issue a preliminary decision within 180 days of a complaint being filed.
The EEOC will notify the organization against whom a charge is filed within 10 days. A charge does not constitute a finding that your organization engaged in discrimination; rather, the EEOC has authority to investigate whether there is reasonable cause to believe discrimination occurred. Charges are often resolved through mediation or settlement (the EEOC will advise the organization and charging party at the outset of the investigation whether the charge is eligible for mediation). During an EEOC investigation to determine whether there is reasonable cause to believe discrimination has taken place, the organization may be asked to submit a Statement of Position (the organization's chance to tell its side of the story), respond to a Request for Information (asking for personnel policies, certain personnel files and other relevant information), permit an on-site visit and provide contact information or make employees available for witness interviews. The EEOC is entitled to all information relevant to the allegations contained in the charge, and may obtain such information by use of subpoena power. As mentioned, the EEOC investigation process is slow; as of 2015, the average time the EEOC took to investigate and resolve a charge was about 10 months.
Once a regional office of the NYSDHR receives a complaint, the investigation begins. Respondents are notified, and the Division will usually resolve any questionable issues of jurisdiction. If applicable, a copy of the complaint will be forwarded to the EEOC. The investigation is then conducted using methods such as written inquiry, field investigation and investigatory conference. In the majority of cases, DHR investigations are complete within 180 days.
Once an EEOC investigator has completed the investigation, the EEOC will make a determination on the merits of the charge. If they cannot conclude there is reasonable cause to believe discrimination has occurred, the charging party is issued a Dismissal and Notice of Rights (also known as a "Right to Sue" letter) informing them of their right to file a lawsuit in federal court within 90 days. If they determine there is reasonable cause, both parties receive a Letter of Determination stating there is reason to believe discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge through an informal process known as conciliation. When conciliation is unsuccessful, the EEOC may enforce violations of its statutes by filing suit in federal court. Alternatively, if the EEOC decides not to sue, the charging party receives a Right to Sue letter and may file suit within 90 days.
Once a NYSDHR investigation is completed, the Division will determine whether there is probable cause that an act of discrimination has occurred and notify the complainant and respondent in writing. If there is a finding of no probable cause, or lack of jurisdiction, the matter is dismissed. A complainant can appeal a "no probable cause" finding in state court within 60 days. If there is a finding of probable cause, the case is presented in a public hearing. Typically, an employee who receives a Probable Cause Determination from the DHR, rather than proceed to a hearing before the State Division, will file a complaint in federal court (including federal claims in order to obtain punitive damages and attorneys' fees), and try to use the Probable Cause Determination as evidence to support their claim.
Keisha-Ann G. Gray is a partner in Proskauer's Labor & Employment Department, resident of the New York office. Proskauer Associate Nicholas Joseph, also in the New York office, assisted with this article.