NY Exec L § 297 (2021)
2021 New York Laws EXC - Executive Article 15 - Human Rights Law 297 - Procedure.

§ 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 complaint in writing under oath or by declaration 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  executive  director  of  the  justice  center for the protection of people with special needs, 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.  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.   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. In cases of housing discrimination only, a person  whose  complaint  has  been  dismissed  by  the  division  after investigation for lack of jurisdiction or lack  of  probable  cause  may file  the  same  cause  of action in a court of appropriate jurisdiction pursuant to this section, unless judicial review of such  dismissal  has been  sought  pursuant  to  section  two  hundred  ninety-eight  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.   * NB Effective until February 1, 2022   * 10.  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. Expert witness fees  may  be awarded in the same manner as attorney's fees. 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.   * NB Effective February 1, 2022