Intersection Between the New York State Division of Human Rights and Title the Goes New York Here Courts

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1 Intersection Between the New York State Division of Human Rights and Title the Goes New York Here Courts Presented By: Keji A. Ayorinde, Assistant General Counsel, The Interpublic Group of Companies, Inc. Frank Birchfield, Ogletree Deakins

2 Part 1 Agenda 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

3 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

4 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

5 Part 1: Comparison Between EEOC and New York State Division of Human Rights

6 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)

7 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

8 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

9 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 employees up to $50k Employers with employees up to $100k Employers with employees up to $200k Employers with 500+ employees up to $300k

10 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

11 New York State Division of Human Rights ( NYSDHR ) Initiating a Complaint 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

12 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

13 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

14 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

15 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

16 EEOC vs. NYSDHR 16

17 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 Laws enforced Enforces federal antidiscrimination laws in the area of employment Economic damages, Compensatory damages Enforces New York State Human Rights Law, which only applies to New York State 17

18 Comparison Between EEOC and NYSDHR Procedures (cont.) Protections EEOC prohibits discrimination on the following grounds: race, color, religion, sex/gender, national origin, age and disability NYSDHR 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

19 Comparison Between EEOC and NYSDHR Procedures (cont.) Litigation EEOC Litigate claims in court on behalf of claimant NYSDHR Does not litigate claims in court on behalf of claimant; instead, the NYSDHR resolves complaints by conducting public hearings before ALJs 19

20 Part 2: Agency Intersection with State Courts

21 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

22 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

23 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

24 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

25 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, (3d Dep t 2015) 25

26 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 ER, 2015 WL , at *14 (S.D.N.Y. Mar. 2, 2015) (quoting Josey v. Goord, 9 N.Y.3d 386, 389 (N.Y. 2007)). 26

27 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 , 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

28 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

29 Appealing a Decision on the Merits After a Hearing Complainant will likely be barred from relitigating 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

30 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

31 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

32 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

33 Part 3: New Developments: Changes in Gender Discrimination and Harassment Laws

34 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

35 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

36 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

37 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

38 Remedies for Employment Discrimination S. 3 / A 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

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40 Thank you!