Disability & Employment Law in New York State - Cornell University

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York. However, it should be noted that a recent decision in Hoffman v. ParadePublications has expanded the scope of the Division and the NYSHRL to coverout-of-state employees of New York employers. 903. Conflict Resolution: The Division may attempt to resolve the problem byconciliation. 91 While this step will usually proceed after the investigation phase iscompleted, the Division may commence a conciliation process at any point afterthe complaint is filed. Conciliation is generally conducted by a divisioninvestigator or prosecutor, rather than by a distinct mediation program. If anagreement is reached through conciliation, it must include a commitment fromthe employer to cease engaging in the discriminatory acts. 92 It may include otheragreements between the parties designed to remedy the harm caused bydiscrimination. 93 If an agreement is reached, the Division will provide the partieswith a written order confirming the terms that must be met. 94 Within one year ofthe written order, the Division will investigate to make sure that the terms of theorder are being met, and can take action to enforce compliance if they are not,including imposing up to one year of jail time and/or a $500 fine. 954. Hearing: If conciliation has not been attempted, or has been unsuccessful, theDivision usually will proceed to a hearing at the Division offices within 270 daysafter the complaint was filed. 96 In the hearing, complainants may generally berepresented by their own attorney or if they do not have an attorney, a Divisionappointedprosecutor will advance the claim. 97 However, in the latter instance,the prosecutor represents the state, not the complainant.5. If a complaint was dismissed by the Division either for lack of jurisdiction, or forlack of cause, the complainant can appeal this decision through the New Yorkstate court system. The court can overrule the Division and order a hearing. 98 Ifthis occurs, the Division must proceed to a hearing within 120 days of the courtorder. 996. Resolution: Based on the findings of the Division at its hearing, the Division mayorder a variety of remedies, discussed further in the next section.90 Hoffman v. Parade Publications, 878 N.Y.S.2d 320 (1st Dept. 2009).91 N.Y. Exec. Law § 297(3)(a).92 Id. § 297 (3)(a).93 Id.94 N.Y. Exec. Law § 297(3)(b).95 Id. §§ 297(7), 299.96 Id. § 297(4)(a).97 Id.98 Id.99 Id.To learn more go to http://www.nymakesworkpay.org15
Disability & Employment Law in New York State:Analysis and Recommendations7. Appeal: Decisions of the Division may be appealed in court. 100Some states and the ADA make the administrative complaint process a gate-keepingfunction. Under the ADA, a legal claim cannot proceed in court until the EqualEmployment Opportunity Commission (EEOC) issues a “right to sue letter” or until theagency has completed its internal processes, at which point a person can appeal thatdecision in court. 101 Workers in New York, however, have the benefit of access to eitherthe state courts or the Division of Human Rights. It is possible to bypass the Divisionentirely if a trial is preferred. The only limitation is that a person cannot pursue bothoptions simultaneously – it is not possible to go to trial, while also awaiting a hearing orentering conciliation through the Division of Human Rights. 102There are some reasons why pursuing a complaint through an administrative processmay be preferable to a judicial filing. For instance, it generally is easier to representoneself through administrative complaint processes than to proceed without an attorneyin court. In addition, the agency bears the cost of investigation and hearing, whereasgoing to court involves court costs and attorneys’ fees, which cannot be recovered fromthe losing party in NYSHRL employment claims. 103On the other hand, filing a complaint with the Division of Human Rights must beaccomplished within one year, 104 whereas the statute of limitations to file anemployment discrimination claim in a state court is three years from the originatingincident. 105 In contrast, the EEOC requires that a complaint first be filed within 180 daysof the discriminatory incident, although that deadline can be extended to 300 dayswhere a claim is based on violations of both federal and state disability civil rightslaws. 106 Regardless, the NYSHRL allows for more time than that available for ADAclaims, both for Division complaints and lawsuits.Division investigators, prosecutors and hearing officer staff receive initial training onrequirements for reasonable accommodation and interactive process, and have options100 Id. § 298.101 ADA, 42 U.S.C. §§ 2000(e)(5)(c), 12117(a).102 N.Y. Exec. Law § 297(9). If an individual has filed a complaint with the Division, and decides to go tocourt, (s)he may voluntarily dismiss the complaint with the Division in order to move forward in the statecourt system.103 See id. § 297(9)-(10).104 Id. § 297(5).105See Edgar De Leon, Basic New York State Employment Law,http://www.deleonlawyers.com/CM/Articles/article-ny-employment-law.asp (last visited Feb. 19, 2010).Where discriminatory actions are continuing, courts have sometimes allowed related events that tookplace more than three years ago to be treated as “timely” under the NYSHRL. Gangemi Law Firm, P.C.,Primer on the New York State Human Rights Law,http://www.newyorkemploymentattorneyblog.com/2008/06/primer_on_the_new_york_state_h.html (lastvisited February 19, 2010).106 See Equal Employment Opportunity Commission, Federal Laws Prohibiting Job DiscriminationQuestions and Answers, http://www.eeoc.gov/facts/qanda.html (last visited March 24, 2010).16
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