Allegations of discrimination are serious charges, can be incredibly stressful for all parties involved and may feel intensely personal. A business that finds itself on the wrong end of a discrimination charge faces damages and penalties that can be incredibly costly in monetary terms, a public relations hit and cause a decrease in employee morale. For all of these reasons and more, when your business has received a complaint of discrimination (or if you have reason to believe that one is about to be filed) it is important to contact an experienced employment law attorney so you can get counsel and guidance from the outset and weather the storm. Our Award Winning New York Employment Lawyer has defended clients against discrimination claims at the federal, state, and local levels, both in court and at the administrative levels, including the New York State Division of Human Rights (“SDHR”). This blog post generally discusses steps that should be considered if an administrative complaint is filed with the state agency.
An experienced attorney in a situation like this is critical and can make all the difference between protecting your company and personnel and potentially resolving the matter in a satisfactory and expeditious manner.
Every case is unique and requires a careful analysis. Once a complaint has been received, a lot of work and preparation needs to be done prior to responding. Ignoring the complaint is not an option. Failure to respond to the complaint can lead to subpoenas and/or negative inferences being drawn against the company.
Preliminarily, it is important to understand the different stages of a complaint before the SDHR. Initially, the allegations are only those of the individual, the SDHR has not yet made a determination. For that, the agency will conduct an investigation. In general, an employer is given 15 days to respond to the complaint. Respondents (the parties being complained about) will be given an opportunity to answer the allegations, offer their own evidence and witnesses, and will usually be provided an opportunity to resolve the matter with the Complainant. Failing a resolution, the SDHR will determine whether the investigation yielded sufficient information to find “probable cause” that discrimination occurred. If probable cause is found, a public hearing will be held, with all evidence and witnesses presented before an administrative law judge. Each stage of this process presents its own unique challenges that need to be navigated carefully.
Preparation is key. As with so many other matters, asking the right questions can make all the difference.
Who filed the complaint? This is an important factor. A complaint may be filed by a former or current employee. If a current employee is the complainant, the employer must be mindful of the anti-retaliation provisions under the law. In general, it is unlawful to retaliate against the complainant. Therefore, an employer should be careful if it intends to take disciplinary action against a complainant. Courts have found that a reduction in pay, reduction in duties or a change to a less favorable schedule potentially can be retaliatory conduct. As you can see, a complaint by a current employee raises ongoing management concerns. One of the worst things an employer can do is retaliate against a complainant and give him or her the basis to amend the complaint with a retaliation claim, which is another basis to claim damages. A complainant can win a retaliation claim even if he or she loses the underlying discrimination claim.
Does the State Division have jurisdiction over the complaint?
1. Does the complaint allege conduct that is prohibited by the Human Rights Law and are the allegations subject to investigation by the SDHR?;
2. Was the complaint filed in a timely manner?; and
3. Is the employer covered by the Human Rights Law?
In general, an individual may file a complaint of discrimination with the SDHR based on certain protected categories (see below) against covered employers within one year. If a complaint includes allegations of sexual harassment, gender discrimination and unpaid overtime wages, the SDHR does not have jurisdiction over the unpaid overtime wage claim (unless that is part of a gender claim). The SDHR is empowered to investigate certain administrative complaints of discrimination, harassment and retaliation. The Department of Labor is empowered to investigate administrative claims of unpaid overtime wages. If the complaint does not allege discrimination or harassment under a protected category listed below, an employer may have a defense.
Protected categories under the New York Human Rights Law include: Race, Creed, Color, National Origin, Sexual Orientation, Military Status, Sex, Age, Marital Status, Domestic Violence Victim Status, Disability, Pregnancy-Related Condition, Prior Arrest or Conviction Record, Familial Status and Predisposing Genetic Characteristics.
Second, an administrative complaint under the state law must be filed within one year. This can be a fact specific determination as to when the one-year period is triggered and whether the complainant can argue that there has been a continuous violation. Companies should seek counsel to evaluate its defense. Finally, if a complainant elects not to file an administrative complaint, the individual can file a lawsuit under the state law within three years.
Third, it is worth noting that the Human Rights Law covers employers with four or more employees. Employers with less than four employees may have a defense that they are not a covered employer. Complainants may challenge this defense if the company uses misclassified independent contractors or off-the-books workers.
How to Respond to the Complaint: The employer should work with experienced employment law counsel to ensure that the allegations are investigated and relevant witnesses and documents are considered. Do the allegations rise to the legal standard for a claim? Employers generally submit a Position Statement in response to the complaint. The Position Statement should set forth the employer’s factual and legal arguments and include any relevant supporting exhibits.
The SDHR investigator will review the complaint and Position Statement and may offer the complainant the opportunity to submit a rebuttal statement in response to the employer’s position. During the investigation phase, the investigator may interview witnesses and request relevant documents from both sides. Employers should work with counsel to learn if they can be present during certain interviews of their employees and what documents must be produced. Generally, within 180 days, the SDHR will make a determination whether Probable Cause exists or not. If a “No Probable Cause” Determination is made, the complainant can file an appeal. If a “Probable Cause” Determination is made, a public hearing will be scheduled. Preventing a probable cause determination is critical for employers and underscores the need to get prepared from the outset.
It’s not personal. It’s strictly business. Being named in a discrimination complaint can feel intensely personal. It can spur rash decisions and emotional responses. This blog post generally discusses issues regarding a complaint filed with the SDHR. There are different and additional considerations if a complaint is dual-filed with the EEOC or if a complaint is filed with another agency. Each situation is unique and requires individualized analysis. An experienced employment law attorney can help you. Our attorneys have guided employers through the administrative process. We can help you understand a seemingly impossible situation and show you the possible defenses and arguments to win. If your company, you, or your employees have been named in a complaint of discrimination that is before the SDHR, contact out offices for a confidential consultation at (800) 893-9645 and learn your rights and options.
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