2023 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.
* NB Effective until February 15, 2024
* 5.  Any  complaint  filed  pursuant to this section must be so filed
within three years after the alleged unlawful discriminatory practice.
* NB Effective February 15, 2024
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
article,  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. The attorney general shall have the power to commence an action
or proceeding in the supreme court of the state of New  York,  if,  upon
information  or  belief,  the attorney general is of the opinion that an
employer has been, is, or is about to violate the  provisions  regarding
unlawful  discriminatory  retaliation  pursuant  to subdivision seven of
section two hundred ninety-six of this article. Nothing in this  section
shall  in any way limit rights or remedies which are otherwise available
under law to the attorney general or  any  other  person  authorized  to
bring an action under this section.
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; 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.