N.Y. Executive 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 three years after the alleged unlawful discriminatory practice.

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.