Intersection Between the New York State Division of … Part 1 Comparison Between EEOC and New York...

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Presented By:

▪ Keji A. Ayorinde, Assistant General

Counsel, The Interpublic Group of

Companies, Inc.

▪ Frank Birchfield, Ogletree Deakins

Intersection Between the New York State Division of

Human Rights and the New York Courts

Agenda

Part 1

Comparison Between EEOC and New York

State Division of Human Rights

EEOC Procedural Overview

EEOC Remedies for Discrimination

New York State Division of Human Rights

NYSDHR Investigative Procedure

NYSDHR Public Hearing

NYSDHR Appeals

NYSDHR vs. EEOC

Agenda (continued)

Part 2

Agency Intersection with State Courts

Election of Remedies Doctrine

Civil Actions in State Court

Appealing a Probable Cause Determination

Court Deference to Agency Findings

Doctrine of Res Judicata

Res Judicata Application

Preclusive Effect of NYSDHR Findings

Appealing a Decision on the Merits After a

Hearing

Agenda (continued)

Does Preclusion Apply to Subsequent Litigation

of Causes of Action on the Same Event?

Pursuit in Federal Court?

Preclusive Effect on Federal Causes of Action?

4

Part 1:

Comparison Between EEOC and

New York State Division of Human

Rights


▀ Federal laws enforced by the EEOC

▀ Title VII of the Civil Rights Act of 1964

▀ Age Discrimination in Employment Act (“ADEA”)

▀ Title I of the Americans with Disabilities Act (“ADA”)

▀ Equal Pay Act (“EPA”)

▀ Genetic Information Nondiscrimination Act (“GINA”)

▀ Employees must first file a charge of discrimination with the

EEOC prior to filing a lawsuit in court

▀ E.g., Discrimination based on race, color, religion, sex (including

pregnancy), national origin, age (40 or older), disability or genetic

information

▀ Exception: if complaint under the EPA

▀ Allowed to go directly to court

▀ Deadline: 2 years from the date grievant receives last discriminatory

paycheck (extended to 3 years for willful discrimination)


▀ Filing the complaint ▀ May be filed by the actual grievant, or

▀ An individual, organization or agency may file on behalf of an

individual to protect the grievant’s identify

▀ Time limits

▀ General rule: 180 calendar days from the date discrimination took

place

▀ Extension: 300 calendar days if a state or local agency enforces a

law that prohibits employment discrimination on same basis

▀ But note, for age discrimination – extension to 300 days only if there is a

state (not local) law prohibiting age discrimination in employment and a

state agency or authority enforces that law.

▀ Time limits will not be extended while the grievant attempts to resolve

dispute through another forum

▀ Deadline applies to each discriminatory event

▀ Grievant may pursue claim in other forums for resolution

while simultaneously pursuing the EEOC charge


▀ Mediation?

▀ After grievant files a charge, case may be sent to

mediation

▀ Assignment to EEOC investigator

▀ Notice of Right to Sue 90 days in federal court

▀ Violation

▀ Voluntary settlement with employer

▀ Agency files lawsuit

▀ Notice of Right to Sue

▀ Dismissal


▀ EEOC cannot award remedies

▀ Claimant pursues through own court action or

EEOC may bring suit on behalf of claimant

▀ Compensatory damages

▀ Job search costs

▀ Medical expenses

▀ Emotional harm (mental anguish, depression)

▀ Punitive damages

▀ Employers with 15-100 employees – up to $50k



▀ Employers with 500+ employees – up to $300k


(cont.)

▀ Attorney’s fees

▀ Expert witness fees

▀ Court costs

▀ Age or sex discrimination under the EPA

▀ Liquidated damages

▀ Awarded to punish an especially malicious or

reckless act of discrimination by an employer

New York State Division of Human

Rights (“NYSDHR”)

Two methods of initiating

Grievant files a complaint with a regional office of the

NYSDHR

NYSDHR may, on its own initiative, process its own

complaint

Time limit: within 1 year of the unlawful act of

discrimination

11

Initiating a Complaint


Regional office receives complaint of

discrimination

NYSDHR notifies the respondent(s)

NYSDHR resolves issues of jurisdiction

If requested, NYSDHR will forward copy of

complaint to the EEOC or the U.S. Department of

Housing and Urban Development

Conducts investigation

Written inquiry, field investigation, conference

Probable cause determination

12


(cont.)

If NYSDHR issues finding of no probable cause

or lack of jurisdiction

Matter dismissed

Complainant may appeal to the State Supreme Court

within 60 days

If NYSDHR finding of probable cause Public

Hearing

13

NYSDHR Public Hearing

NYSDHR attorney or agent will present the case

for the grievant, or grievant may retain outside

counsel

Notice of hearing issued

Case may be adjourned only for good cause

Administrative law judge presides over hearing

Lasts at least 1 day

Recommended Order

Sent to parties for comment

Commissioner’s Order

Dismisses the caser

Finds discrimination

14

NYSDHR Appeals

If no probable cause

Case dismissed

Complainant may appeal to the Commission

Appeal to appellate court from the judgement or

order of the complaint

Standard of review: whether the

determination was arbitrary and capricious or

lacking a rational basis

McFarland v. New York State Div. of Human

Rights, 241 A.D.2d 108, 111 (1st Dep’t 1998)

15

EEOC vs. NYSDHR

16


NYSDHR Procedures

EEOC NYSDHR

Initiation of

lawsuit

Must first file a complaint with

the EEOC prior to filing lawsuit

in state court

No requirement to first

file complaint with

NYSDHR prior to filing

lawsuit in state court

Damages • Economic damages

(including both back pay,

front pay and any other

monetary losses),

• Compensatory damages

(e.g. emotional distress),

• Punitive damages,

• Attorneys’ fees

• Economic

damages,

• Compensatory

damages

Laws

enforced

Enforces federal anti-

discrimination laws in the area

of employment

Enforces New York

State Human Rights

Law, which only

applies to New York

State 17


NYSDHR Procedures (cont.)

EEOC NYSDHR

Protections prohibits discrimination

on the following

grounds: race, color,

religion, sex/gender,

national origin, age and

disability

Broader protections,

including sexual orientation,

marital status, domestic

violence victim status, arrest or

conviction record, and

predisposing genetic

characteristics.

Timing Complaints tend to go

years before they are

investigated.

Investigates and resolves

complaints filed in a more

streamlined fashion.

Appeals If NYSDHR issues a No

Probable Cause Determination,

grievant has limited options in

appealing

18


NYSDHR Procedures (cont.)

EEOC NYSDHR

Litigation Litigate claims in court

on behalf of claimant

Does not litigate claims in court

on behalf of claimant; instead,

the NYSDHR resolves

complaints by conducting

public hearings before ALJs

19

Part 2:

Agency Intersection

with State Courts

What if the claimant already has

filed a claim with the NYSDHR?

What are the subsequent effects on

the ability to file a complaint in state

court?

21

Election of Remedies Doctrine

NYSHRL §297(9): Any person claiming to be

“aggrieved by an unlawful discriminatory practice”

will have a cause of action in the appropriate

court unless the complaint has been filed with

the local commission of human rights.

Exception: if NYSDHR dismissed the complaint on the

grounds of administrative convenience, untimeliness, or

annulment of election of remedies

Exception: complaint is filed with the EEOC and then

referred by EEOC to the NYSDHR

A complainant discriminated against has the right

to choose either the administrative remedy or

bring the matter to court. Not both.

22

Civil Action in State Court

As an alternative to filing a claim with the

NYSDHR, claimant may elect to file a court

action in either state supreme court or in

federal district court (provided supplemental

jurisdiction over state court claim)

Statute of limitations: 3 years starting from

when the plaintiff is made aware of the

alleged discriminatory act

23

Appealing a “Probable Cause”

Determination

NYSDHR determinations and

recommendations of public hearings are

reviewable

New York State Human Rights Law

(“NYSHRL”) Section 298

A probable cause determination is reviewable

even though it is nonfinal

Scope of judicial review under the NYSHRL is

extremely narrow

“supported by substantial evidence in the record”

“arbitrary and capricious”

24

Court Deference to Agency Findings

Courts give deference to NYSDHR findings

“due to the experience and expertise in

evaluating allegations of discrimination,

and will only disturb a determination of no

probable cause if it is arbitrary, capricious

or lacks a rational basis.”

Curtis v. New York State Div. of Human Rights,

124 A.D.3d 1117, 1117-18 (3d Dep’t 2015)

25

Doctrine of Res Judicata

Res judicata “precludes a party from litigating

a claim where a judgment on the merits exists

from a prior action between the same parties

involving the same subject matter.” United

States v. E. River Hous. Corp., No. 13 CIV.

8650 ER, 2015 WL 872160, at *14 (S.D.N.Y.

Mar. 2, 2015) (quoting Josey v. Goord, 9

N.Y.3d 386, 389 (N.Y. 2007)).

26

Res Judicata Application

In New York, res judicata is applicable to give

“a conclusive effect to the quasi-judicial

determinations of administrative agencies.”

E. River Hous. Corp., 2015 WL 872160, at *14 (quoting

Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499 (N.Y.

1984)).

After a state court reviews and affirms a no

probable cause finding, preclusive effect will

attach, as long as the aggrieved party has been

provided with due process.

But note—federal courts will only apply res

judicata to agency decisions only if it is

consistent with Congress’ intent in

enacting the federal statute

at issue.27

Preclusive Effect of NYSDHR Findings

If the Human Rights Commission grants

dismissal of a NYSHRL claim on the merits,

complainant may not re-litigate the claim

Second Circuit has noted that the NYSDHR

does not make a probable cause

determination until the complainant has had a

“full opportunity to present on the record,

though informally, his charges against his

employer or other respondent, including the

right to submit all exhibits he wishes to

present.”

28

Appealing a Decision on the Merits

After a Hearing

Complainant will likely be barred from re-

litigating the same claims

If NYSDHR determined no probable cause

Plaintiff barred from re-litigating the same claims

Court lacks subject matter jurisdiction over the

NYSHRL claim and it will likely be dismissed

Standard of review:

Substantial evidence, and

Arbitrary and capricious

29

Does Preclusion Apply to Subsequent

Litigation of Causes of Action on the

Same Event?

Second Circuit: the Court must examine whether

the procedures used in the administrative

proceeding were “sufficient both quantitatively

and qualitatively so as to permit confidence that

the facts were adequately tested and the issue

was fully aired.”

Kosakow v. New Rochelle Radiology Associates,

274 F.3d 706 (2d Cir. 2001)

Factors

Size of the claim, forum of prior litigation, extent of

litigation, competence/experience of counsel,

indications of a compromise verdict

30

Pursuit in Federal Court?

If the New York Supreme Court dismisses an

appeal from the determination of the NYSDHR

which found no probable cause on the merits,

claimant is precluded under res judicata from

litigating the claim in federal court. Bray v. New

York Life Ins., 851 F.2d 60, 61 (2d Cir. 1988).

But may not be barred if case dismissed due to:

Administrative convenience,

Timeliness grounds,

Election of remedies was annulled, or

Complaint was originally filed with the NYSDHR

by the EEOC

31

Preclusive Effect on Federal Causes

of Action?

No probable cause finding has preclusive

effect on:

Section 1981 claims

Section 1983 claims

Section 1985 claims

Section 1986 claims

Title VII or ADEA claims

If these are not raised in the initial charge, they

may be brought in federal court if they are

reasonably related to the claim filed with the

agency

32

Part 3:

New Developments:

Changes in Gender Discrimination

and Harassment Laws

New State Laws Expand Protections

Against Gender Discrimination and

Sexual Harassment

▀ On October 21, 2015, Governor Andrew Cuomo

signed into law a number of bill directly impacting

NYS employers

▀ Grew out of Cuomo’s call for a 10-point

“Women’s Equality Agenda” in his 2013 State

of the State Address

Pay Equity Bill

▀ S.1 / A.6075

▀ Effective January 19, 2016

▀ Amends the current New York State equal

pay law (N.Y. Labor Law Sec. 194)

▀ Exception to achieving pay in current law:

“any factor other than sex”

▀ Exception to achieving pay in new law: “a

bona fide factor other than sex, such as

education, training, or experience”

Pay Equity Bill – New Exception

▀ Attempts to address the perceived vagueness in

current law

▀ Specifies that such bona fide factor(s) may not be

based upon a sex-based differential in

compensation▀ Bona fide factor must be job related

▀ Bona fide fact must be consistent with business necessity

▀ Exception is unavailable where:

1. it can be shown that the employer’s practice causes a

disparate impact on the basis of sex, AND

2. The employer specifically rejected an alternative

practice that would have served the business purpose

without causing such impact

Pay Equity Bill – (cont.)

▀ The new law eliminates loophole in Section 194:

▀ permitted employers to forbid employees from

discussing wages with each other

▀ threat of discipline

▀ Note: Under federal law, already unlawful to forbid

such discussions. (NLRA forbids rules prohibiting

employees from discussing terms of employment

with each other or external third parties.)

▀ Adds liquidated damages liability of up to 300%

of the total amount of wages found to be due▀ = 100% increase from prior version of the law

Remedies for Employment

Discrimination

▀ S. 3 / A. 7189

▀ Effective January 19, 2016

▀ Amends the State Human Rights Law

▀ Permits awards of attorneys’ fees to prevailing plaintiffs in

employment discrimination cases based on sex

▀ Prior law

▀ Fee awards were not available under the State Human Rights

Law

▀ They have been available under relevant federal law (e.g.,

Title VII) and local laws (e.g., NYCHRL)

▀ Even now, the State Human Rights Law prohibits fee

awards for discrimination cases brought concerning other

protected categories

Thank you!

Intersection Between the New York State Division of … Part 1 Comparison Between EEOC and New York...

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