N.Y. EXC Law § 297 — New York Code / Act EXC / Article 15 / Section 297
Procedure
Status: in_force

§ 297. Procedure. 1. Any person claiming to be aggrieved by an\nunlawful discriminatory practice may, by himself or herself or his or\nher attorney-at-law, make, sign and file with the division a complaint\nin writing under oath or by declaration which shall state the name and\naddress of the person alleged to have committed the unlawful\ndiscriminatory practice complained of and which shall set forth the\nparticulars thereof and contain such other information as may be\nrequired by the division. The commissioner of labor or the attorney\ngeneral, or the executive director of the justice center for the\nprotection of people with special needs, or the division on its own\nmotion may, in like manner, make, sign and file such complaint. In\nconnection with the filing of such complaint, the attorney general is\nauthorized to take proof, issue subpoenas and administer oaths in the\nmanner provided in the civil practice law and rules. Any employer whose\nemployees, or some of them, refuse or threaten to refuse to cooperate\nwith the provisions of this article, may file with the division a\nverified complaint asking for assistance by conciliation or other\nremedial action.\n  2. a. After the filing of any complaint, the division shall promptly\nserve a copy thereof upon the respondent and all persons it deems to be\nnecessary parties, and make prompt investigation in connection\ntherewith. Within one hundred eighty days after a complaint is filed,\nthe division shall determine whether it has jurisdiction and, if so,\nwhether there is probable cause to believe that the person named in the\ncomplaint, hereinafter referred to as the respondent, has engaged or is\nengaging in an unlawful discriminatory practice. If it finds with\nrespect to any respondent that it lacks jurisdiction or that probable\ncause does not exist, the commissioner shall issue and cause to be\nserved on the complainant an order dismissing such allegations of the\nsaid complaint as to such respondent.\n  b. Notwithstanding the provisions of paragraph a of this subdivision,\nwith respect to housing discrimination only, after the filing of any\ncomplaint, the division shall, within thirty days after receipt, serve a\ncopy thereof upon the respondent and all persons it deems to be\nnecessary parties, and make prompt investigation in connection\ntherewith. Within one hundred days after a complaint is filed, the\ndivision shall determine whether it has jurisdiction and, if so, whether\nthere is probable cause to believe that the person named in the\ncomplaint, hereinafter referred to as the respondent, has engaged or is\nengaging in an unlawful discriminatory practice. If it finds with\nrespect to any respondent that it lacks jurisdiction or that probable\ncause does not exist, the commissioner shall issue and cause to be\nserved on the complainant an order dismissing such allegations of the\nsaid complaint as to such respondent.\n  3. a. If in the judgment of the division the circumstances so warrant,\nit may, at any time after the filing of the complaint, endeavor to\neliminate such unlawful discriminatory practice by conference,\nconciliation and persuasion. Each conciliation agreement shall include\nprovisions requiring the respondent to refrain from the commission of\nunlawful discriminatory practices in the future and may contain such\nfurther provisions as may be agreed upon by the division, the\ncomplainant, and the respondent, including a provision for the entry in\nthe supreme court in any county in the judicial district where the\nalleged unlawful discriminatory practice was committed, or where any\nrespondent resides or maintains an office for the transaction of\nbusiness, or where the housing accommodation, land or commercial space\nspecified in the complaint is located, of a consent decree embodying the\nterms of the conciliation agreement. The division shall not disclose\nwhat has transpired in the course of such endeavors.\n  b. If a conciliation agreement is entered into, the division shall\nissue an order embodying such agreement and serve a copy of such order\nupon all parties to the proceeding, and if a party to any such\nproceeding is a regulated creditor, the division shall forward a copy of\nthe order embodying such agreement to the superintendent.\n  c. If the division finds that noticing the complaint for hearing would\nbe undesirable, the division may, in its unreviewable discretion, at any\ntime prior to a hearing before a hearing examiner, dismiss the complaint\non the grounds of administrative convenience. However, in cases of\nhousing discrimination only, an administrative convenience dismissal\nwill not be rendered without the consent of the complainant. The\ndivision may, subject to judicial review, dismiss the complaint on the\ngrounds of untimeliness if the complaint is untimely or on the grounds\nthat the election of remedies is annulled.\n  4. a. Within two hundred seventy days after a complaint is filed, or\nwithin one hundred twenty days after the court has reversed and remanded\nan order of the division dismissing a complaint for lack of jurisdiction\nor for want of probable cause, unless the division has dismissed the\ncomplaint or issued an order stating the terms of a conciliation\nagreement not objected to by the complainant, the division shall cause\nto be issued and served a written notice, together with a copy of such\ncomplaint, as the same may have been amended, requiring the respondent\nor respondents to answer the charges of such complaint and appear at a\npublic hearing before a hearing examiner at a time not less than five\nnor more than fifteen days after such service and at a place to be fixed\nby the division and specified in such notice. The place of any such\nhearing shall be the office of the division or such other place as may\nbe designated by the division. The case in support of the complaint\nshall be presented by one of the attorneys or agents of the division\nand, at the option of the complainant, by his or her attorney. With the\nconsent of the division, the case in support of the complainant may be\npresented solely by his or her attorney. No person who shall have\npreviously made the investigation, engaged in a conciliation proceeding\nor caused the notice to be issued shall act as a hearing examiner in\nsuch case. Attempts at conciliation shall not be received in evidence.\nAt least two business days prior to the hearing the respondent shall,\nand any necessary party may, file a written answer to the complaint,\nsworn to subject to the penalties of perjury, with the division and\nserve a copy upon all other parties to the proceeding. A respondent who\nhas filed an answer, or whose default in answering has been set aside\nfor good cause shown may appear at such hearing in person or otherwise,\nwith or without counsel, cross examine witnesses and the complainant and\nsubmit testimony. The complainant and all parties shall be allowed to\npresent testimony in person or by counsel and cross examine witnesses.\nThe hearing examiner may in his or her discretion permit any person who\nhas a substantial personal interest to intervene as a party, and may\nrequire that necessary parties not already parties be joined. The\ndivision or the complainant shall have the power reasonably and fairly\nto amend any complaint, and the respondent and any other party shall\nhave like power to amend his or her answer. The hearing examiner shall\nnot be bound by the strict rules of evidence prevailing in courts of law\nor equity. The testimony taken at the hearing shall be under oath and a\nrecord made.\n  b. If the respondent fails to answer the complaint, the hearing\nexaminer designated to conduct the hearing may enter the default and the\nhearing shall proceed on the evidence in support of the complaint. Such\ndefault may be set aside only for good cause shown upon equitable terms\nand conditions.\n  c. Within one hundred eighty days after the commencement of such\nhearing, a determination shall be made and an order served as\nhereinafter provided. If, upon all the evidence at the hearing, the\ncommissioner shall find that a respondent has engaged in any unlawful\ndiscriminatory practice as defined in this article, the commissioner\nshall state findings of fact and shall issue and cause to be served on\nsuch respondent an order, based on such findings and setting them forth,\nand including such of the following provisions as in the judgment of the\ndivision will effectuate the purposes of this article: (i) requiring\nsuch respondent to cease and desist from such unlawful discriminatory\npractice; (ii) requiring such respondent to take such affirmative\naction, including (but not limited to) hiring, reinstatement or\nupgrading of employees, with or without back pay, restoration to\nmembership in any respondent labor organization, admission to or\nparticipation in a guidance program, apprenticeship training program,\non-the-job training program or other occupational training or retraining\nprogram, the extension of full, equal and unsegregated accommodations,\nadvantages, facilities and privileges to all persons, granting the\ncredit which was the subject of any complaint, evaluating applicants for\nmembership in a place of accommodation without discrimination based on\nrace, creed, color, national origin, sex, disability or marital status,\nand without retaliation or discrimination based on opposition to\npractices forbidden by this article or filing a complaint, testifying or\nassisting in any proceeding under this article; (iii) awarding of\ncompensatory damages to the person aggrieved by such practice; (iv)\nawarding of punitive damages, in cases of employment discrimination\nrelated to private employers, and, in cases of housing discrimination,\nwith damages in housing discrimination cases in an amount not to exceed\nten thousand dollars, to the person aggrieved by such practice; (v)\nrequiring payment to the state of profits obtained by a respondent\nthrough the commission of unlawful discriminatory acts described in\nsubdivision three-b of section two hundred ninety-six of this article;\nand (vi) assessing civil fines and penalties, in an amount not to exceed\nfifty thousand dollars, to be paid to the state by a respondent found to\nhave committed an unlawful discriminatory act, or not to exceed one\nhundred thousand dollars to be paid to the state by a respondent found\nto have committed an unlawful discriminatory act which is found to be\nwillful, wanton or malicious; (vii) requiring a report of the manner of\ncompliance. If, upon all the evidence, the commissioner shall find that\na respondent has not engaged in any such unlawful discriminatory\npractice, he or she shall state findings of fact and shall issue and\ncause to be served on the complainant an order based on such findings\nand setting them forth dismissing the said complaint as to such\nrespondent. A copy of each order issued by the commissioner shall be\ndelivered in all cases to the attorney general, the secretary of state,\nif he or she has issued a license to the respondent, and such other\npublic officers as the division deems proper, and if any such order\nissued by the commissioner concerns a regulated creditor, the\ncommissioner shall forward a copy of any such order to the\nsuperintendent. A copy of any complaint filed against any respondent who\nhas previously entered into a conciliation agreement pursuant to\nparagraph a of subdivision three of this section or as to whom an order\nof the division has previously been entered pursuant to this paragraph\nshall be delivered to the attorney general, to the secretary of state if\nhe or she has issued a license to the respondent and to such other\npublic officers as the division deems proper, and if any such respondent\nis a regulated creditor, the commissioner shall forward a copy of any\nsuch complaint to the superintendent.\n  d. The division shall establish rules of practice to govern, expedite\nand effectuate the foregoing procedure and its own actions thereunder.\n  e. Any civil penalty imposed pursuant to this subdivision shall be\nseparately stated, and shall be in addition to and not reduce or offset\nany other damages or payment imposed upon a respondent pursuant to this\narticle. In cases of employment discrimination where the employer has\nfewer than fifty employees, such civil fine or penalty may be paid in\nreasonable installments, in accordance with regulations promulgated by\nthe division. Such regulations shall require the payment of reasonable\ninterest resulting from the delay, and in no case permit installments to\nbe made over a period longer than three years.\n  5. Any complaint filed pursuant to this section must be so filed\nwithin three years after the alleged unlawful discriminatory practice.\n  6. At any time after the filing of a complaint with the division\nalleging an unlawful discriminatory practice under this article, if the\ndivision determines that the respondent is doing or procuring to be done\nany act tending to render ineffectual any order the commissioner may\nenter in such proceeding, the commissioner may apply to the supreme\ncourt in any county where the alleged unlawful discriminatory practice\nwas committed, or where any respondent resides or maintains an office\nfor the transaction of business, or if the complaint alleges an unlawful\ndiscriminatory practice under subdivision two-a or paragraph (a), (b) or\n(c) of subdivision five of section two hundred ninety-six of this\narticle, where the housing accommodation, land or commercial space\nspecified in the complaint is located, or, if no supreme court justice\nis available in such county, in any other county within the judicial\ndistrict, for an order requiring the respondents or any of them to show\ncause why they should not be enjoined from doing or procuring to be done\nsuch act. The order to show cause may contain a temporary restraining\norder and shall be served in the manner provided therein. On the return\ndate of the order to show cause, and after affording all parties an\nopportunity to be heard, if the court deems it necessary to prevent the\nrespondents from rendering ineffectual an order relating to the subject\nmatter of the complaint, it may grant appropriate injunctive relief upon\nsuch terms and conditions as it deems proper.\n  7. Not later than one year from the date of a conciliation agreement\nor an order issued under this section, and at any other times in its\ndiscretion, the division shall investigate whether the respondent is\ncomplying with the terms of such agreement or order. Upon a finding of\nnon-compliance, the division shall take appropriate action to assure\ncompliance.\n  8. No officer, agent or employee of the division shall make public\nwith respect to a particular person without his consent information from\nreports obtained by the division except as necessary to the conduct of a\nproceeding under this section.\n  9. Any person claiming to be aggrieved by an unlawful discriminatory\npractice shall have a cause of action in any court of appropriate\njurisdiction for damages, including, in cases of employment\ndiscrimination related to private employers and housing discrimination\nonly, punitive damages, and such other remedies as may be appropriate,\nincluding any civil fines and penalties provided in subdivision four of\nthis section, unless such person had filed a complaint hereunder or with\nany local commission on human rights, or with the superintendent\npursuant to the provisions of section two hundred ninety-six-a of this\narticle, provided that, where the division has dismissed such complaint\non the grounds of administrative convenience, on the grounds of\nuntimeliness, or on the grounds that the election of remedies is\nannulled, such person shall maintain all rights to bring suit as if no\ncomplaint had been filed with the division. At any time prior to a\nhearing before a hearing examiner, a person who has a complaint pending\nat the division may request that the division dismiss the complaint and\nannul his or her election of remedies so that the human rights law claim\nmay be pursued in court, and the division may, upon such request,\ndismiss the complaint on the grounds that such person's election of an\nadministrative remedy is annulled. Notwithstanding subdivision (a) of\nsection two hundred four of the civil practice law and rules, if a\ncomplaint is so annulled by the division, upon the request of the party\nbringing such complaint before the division, such party's rights to\nbring such cause of action before a court of appropriate jurisdiction\nshall be limited by the statute of limitations in effect in such court\nat the time the complaint was initially filed with the division. Any\nparty to a housing discrimination complaint shall have the right within\ntwenty days following a determination of probable cause pursuant to\nsubdivision two of this section to elect to have an action commenced in\na civil court, and an attorney representing the division of human rights\nwill be appointed to present the complaint in court, or, with the\nconsent of the division, the case may be presented by complainant's\nattorney. A complaint filed by the equal employment opportunity\ncommission to comply with the requirements of 42 USC 2000e-5(c) and 42\nUSC 12117(a) and 29 USC 633(b) shall not constitute the filing of a\ncomplaint within the meaning of this subdivision. No person who has\ninitiated any action in a court of competent jurisdiction or who has an\naction pending before any administrative agency under any other law of\nthe state based upon an act which would be an unlawful discriminatory\npractice under this article, may file a complaint with respect to the\nsame grievance under this section or under section two hundred\nninety-six-a of this article. In cases of housing discrimination only, a\nperson whose complaint has been dismissed by the division after\ninvestigation for lack of jurisdiction or lack of probable cause may\nfile the same cause of action in a court of appropriate jurisdiction\npursuant to this section, unless judicial review of such dismissal has\nbeen sought pursuant to section two hundred ninety-eight of this\narticle. The attorney general shall have the power to commence an action\nor proceeding in the supreme court of the state of New York, if, upon\ninformation or belief, the attorney general is of the opinion that an\nemployer has been, is, or is about to violate the provisions regarding\nunlawful discriminatory retaliation pursuant to subdivision seven of\nsection two hundred ninety-six of this article. Nothing in this section\nshall in any way limit rights or remedies which are otherwise available\nunder law to the attorney general or any other person authorized to\nbring an action under this section.\n  10. In an action or proceeding at law under this section or section\ntwo hundred ninety-eight of this article, the commissioner or the court\nmay in its discretion award reasonable attorney's fees to any prevailing\nor substantially prevailing party; provided, however, that a prevailing\nrespondent or defendant in order to recover such reasonable attorney's\nfees must make a motion requesting such fees and show that the action or\nproceeding brought was frivolous; and further provided that in a\nproceeding brought in the division of human rights, the commissioner may\nonly award attorney's fees as part of a final order after a public\nhearing held pursuant to subdivision four of this section. In no case\nshall attorney's fees be awarded to the division, nor shall the division\nbe liable to a prevailing or substantially prevailing party for\nattorney's fees, except in a case in which the division is a party to\nthe action or the proceeding in the division's capacity as an employer.\nExpert witness fees may be awarded in the same manner as attorney's\nfees. In cases of employment discrimination, a respondent shall only be\nliable for attorney's fees under this subdivision if the respondent has\nbeen found liable for having committed an unlawful discriminatory\npractice. In order to find the action or proceeding to be frivolous, the\ncourt or the commissioner must find in writing one or more of the\nfollowing:\n  (a) the action or proceeding was commenced, used or continued in bad\nfaith, solely to delay or prolong the resolution of the litigation or to\nharass or maliciously injure another; or\n  (b) the action or proceeding was commenced or continued in bad faith\nwithout any reasonable basis and could not be supported by a good faith\nargument for an extension, modification or reversal of existing law. If\nthe action or proceeding was promptly discontinued when the party or\nattorney learned or should have learned that the action or proceeding\nlacked such a reasonable basis, the court may find that the party or the\nattorney did not act in bad faith.\n