intersection between the new york state division of … part 1 comparison between eeoc and new york...
TRANSCRIPT
Title Goes Here
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
EEOC Procedural Overview
▀ 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)
EEOC Procedural Overview
▀ 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
EEOC Procedural Overview
▀ 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 Remedies for Discrimination
▀ 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 101-200 employees – up to $100k
▀ Employers with 201-500 employees – up to $200k
▀ Employers with 500+ employees – up to $300k
EEOC Remedies for Discrimination
(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
NYSDHR Investigative Procedure
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
NYSDHR Investigative Procedure
(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
Comparison Between EEOC and
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
Comparison Between EEOC and
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
Comparison Between EEOC and
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
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
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