New York State Division of Human Rights Complaints: Significant Developments

The New York State Division of Human Rights (SDHR) is a state agency tasked with investigating, prosecuting, and adjudicating complaints involving various types of discrimination allegations. These include claims brought by public school employees and students.

In general, when a complaint is filed with the SDHR, the SDHR will investigate and make a preliminary determination about whether there is “probable cause” to believe that discrimination occurred. If the SDHR finds probable cause, then the case will be referred to an administrative law judge (ALJ) for an administrative trial. If the SDHR’s investigation leads it to conclude there is no probable cause to believe that discrimination occurred, then the case will not move forward. As such, whether probable cause is found following an investigation is very significant.

The ALJ presiding over an administrative trial has the power to, among other things, require individuals or entities, such as school districts, to pay monetary damages to individuals found to have been subjected to discriminatory treatment.

The manner in which the SDHR handles claims has changed over time, both procedurally and substantively. For example, the threshold standard for unlawful discrimination has been lowered in recent years , and individual employees or officers, as well as employers, may be named as parties accused of discrimination in SDHR complaints. If found to have engaged in intentional discriminatory conduct following an administrative trial, individuals and employers cannot avail themselves of insurance coverage to cover such monetary damages. Further, individual employees and officers subject to monetary damages following an SDHR administrative trial, cannot look to their school district employer to pay those monetary damages on the employee/officer’s behalf.

Statistical data released by the SDHR indicates that the SDHR is now more likely to find “probable cause” that discrimination occurred following an investigation of a complaint than it was previously. For example, according to the SDHR’s website, in fiscal year (April 1 through March 31) 2020, the SDHR found probable cause in 15.7% of complaints it investigated. This increased to 21.4% in 2021. This is the most recent data released by the SDHR regarding its probable cause finding rates.

Anecdotal indicators lead us to believe that this trend of increasing probable cause findings will be higher again when the SDHR releases more data regarding the 2022 fiscal year.

During prior periods where the rates of probable cause findings by the SDHR increased significantly, this resulted in a backlog of cases needing to be scheduled for administrative trials. We believe that it is likely that this will happen again and that parties could be waiting for months or years for administrative trials to be conducted following probable cause findings.

One practical concern associated with these anticipated delays is that witnesses may be difficult to locate when it comes time for the administrative trial. We recommend that school district administrators work with legal counsel to ensure that contact information is kept up to date for potential witnesses, particularly employees who may leave their jobs prior to the administrative trial. In some cases, it may be appropriate to obtain affidavits from employees who are likely to be witnesses in a trial shortly after a probable cause finding is issued. This way, relevant information is recorded while it is still fresh in the minds of witnesses, and, in the event a witness cannot be located when an administrative trial takes place, it is possible that the ALJ will allow the affidavit into evidence.

The increased percentage of probable cause findings will also likely lead to increased efforts by SDHR staff, including ALJs, to try to persuade parties to settle complaints.

It should be noted that settling complaints after a “probable cause” finding will be more onerous for complaints filed on or after October 12, 2021. This is because the SDHR is now prohibiting complainants and accused parties from entering into “private settlements” to resolve a complaint after a probable cause finding has been issued. https://dhr.ny.gov/law-2021#dhr1

The term “private settlement” refers to a settlement between the individual who filed the complaint and the party or parties accused of discrimination. So called private settlements are the norm in civil litigation brought in state and federal courts, but for complaints filed on or after October 12, 2021, the SDHR will require that it be a party to any such settlements, with the power to veto any settlements that it does not approve of, even if the complainant and the party accused of discrimination wish to settle the matter. If the SDHR does not approve of all of the terms of the parties’ negotiated settlement, the SDHR will require that the matter proceed to an administrative trial.

The SDHR’s increased involvement in, and veto power over, settlements limits the freedom that a complainant and accused have to fashion a settlement agreement. As such, if parties believe a settlement may be an appropriate way to resolve a given SDHR complaint, they may wish to consider trying to settle the matter during the investigation phase of the proceeding, prior to the issuance of a probable cause determination.

Please contact us if you have questions about an SDHR matter.