The N.Y. State Division of Human Rights is the administrative agency charged with enforcing New York's Human Rights Law, which prohibits discrimination in employment based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, religion or marital status.1
In the past, the State Division often took years from the time an administrative complaint was filed to investigate and issue a finding of no probable cause (dismissing the complaint) or probable cause (which would lead to a "public hearing" before an administrative law judge). In the great majority of cases, the State Division based its finding on the parties' written submissions or a two-party fact-finding conference.
Since Governor Eliot Spitzer appointed new State Division Commissioner Kumiki Gibson, radical changes have been made. Those changes have resulted in the State Division's self-described "more aggressive approach" to investigating administrative complaints of discrimination.2
As a result, the State Division has revised its complaint-investigation practice by holding lengthier two-party fact-finding conferences (and sometimes only one-party conferences with the complainant), issuing extensive document/information production requests (occasionally by subpoena), and being far less willing to extend submission deadlines.
It also has overhauled its hearing process by effectively eliminating pretrial conferences in advance of the public hearing, quickly scheduling hearings after probable cause determinations, and refusing to adjourn public hearings, even in cases where parties have reached a settlement in principal but still are negotiating and executing the settlement papers. In this article, we will highlight the procedures taken by the State Division to effectuate its new approach and suggest ways employers and their counsel can best navigate future investigations and hearings for successful outcomes.
Timeliness—The State's Largest Hurdle
The Human Rights Law requires the State Division to complete investigations within 180 days after the complaint is filed.3 If "probable cause" is found, the statute requires that the State Division issue a Notice of Hearing within 270 days of the filing date; hold a public hearing within 15 days after the Notice of Hearing is issued; and issue a decision within 180 days after the commencement of the hearing (for a total of 465 days from the filing date). To date, these requirements seldom have been met.
Changes to the Division's Practices and Procedures
While new regulations have not been published, the State Division's recent actions demonstrate drastic changes to its internal guidelines and procedures. Following is discussion of some of these changes.
Only Brief Extensions of Time To Reply
While reasonable extensions of time to respond to administrative complaints were previously granted, the time permitted to gather rebuttal data and to submit a position statement is now very brief. The N.Y. State Office of the State Comptroller (OSC) suggests that "no more than 15 days should elapse between Division case processing activities" to eliminate gaps of inactivity.4 Also, while the practice of permitting delays while the parties privately sought to conciliate the matter has been discontinued, now, even where parties indicate that they are working together toward conciliation of a matter, it is unlikely that an extension of time to respond will be granted.
Previously, the State Division often limited its investigation to review of the administrative complaint, Respondent's position statement, and the Complainant's rebuttal. Respondents rarely were provided with a copy of Complainant's rebuttal and were not asked to submit a reply. Today, no matter how specific the information provided by the Respondent, it is unlikely that a determination will be made without further investigation. Investigators routinely make requests for supplemental information, comparative data, and responses following Complainant's rebuttal to the position statement, adding greatly to the cost of defense. The Division then holds a one- or two-party fact-finding conference, which seem to be more lengthy and invasive.
Increased Findings of Probable Cause
In 2006 the State Division found probable cause in only 7 percent of cases. By contrast, in 2007 the State Division found probable cause in 22 percent of cases.5 In the section below, we discuss strategies to avoid probable cause findings and solutions for effective hearing preparation following adverse determinations.
Overhaul of Hearing Procedures
Previously, after a probable cause determination was made, a relatively lengthy period might pass before the State Division scheduled the preliminary conference(s), deadlines for conference statements and answers, and the hearing itself. Today, a more expedited process is utilized.
Preliminary Conferences Have Been Effectively Canceled
Formerly, preliminary conferences served the same function as the initial court conference, at which discovery issues were addressed, stipulations were made as to facts or procedural issues, and settlement was discussed. The conference provided the administrative law judge with the opportunity to evaluate the facts, confer with counsel for the parties, inquire about the relative strengths and weaknesses of each party's case, and to schedule hearing dates. That practice has been eliminated.
Today, the preliminary conference is held on the morning that the public hearing begins. Without a true preliminary conference, parties independently must manage the discovery and trial preparation process, without knowing what the adversary intends to introduce into evidence and who its witnesses might be. Consideration of settlement proceeds often without the aid of the Administrative Law Judge. However, many Administrative Law Judges are willing to facilitate the settlement and discovery process by holding teleconferences with both parties. This must be done in an exceedingly short timeframe, without any real sense as to each other's evidence, and under no rules with respect to discovery.
Preliminary Conference Statements Are Replaced with Prehearing Statements
In the past, a preliminary conference statement was due 5 days before the preliminary conference and well before the hearing. Now, the parties are asked to submit a prehearing statement 5 days before the hearing, which must contain the following: (1) issues presented; (2) a list of anticipated witnesses; and (3) a list of anticipated exhibits. This leaves little time to conduct discovery or to prepare for trial.
Even in cases where attorneys are otherwise actively engaged at the time of the hearing (but not in a "recognized" court appearance), adjournments rarely are granted. In some cases, even where the parties have reached a settlement in principle, Administrative Law Judges reportedly are required to proceed with the adjudicatory hearing until the case is settled and a notice of withdrawal is submitted by Complainant.
Double-Booking Hearing Dates
Recently, the State Division has begun scheduling multiple hearings on the same date. For this reason, theoretically a party may appear for a hearing, fully prepared and ready to testify, only to be advised that they are not going to be heard until some later date. This need to re-prepare witnesses and for the hearing will undoubtedly increase costs.
Coping with the State Division's New Procedures
In short, the best practice is to act quickly and to expect that the brief timeframes are immutable. Upon receipt of an administrative complaint, the employer and its counsel immediately should:
Determine whether there is a conflict of interest in representation (if applicable).
Determine whether any or all of the claims are covered by insurance.
Determine whether any or all of the claims are subject to an enforceable binding or nonbinding arbitration agreement or some other alternative dispute resolution agreement (which may not cause the State Division to discontinue or to delay its processing of the complaint).
Put an effective "litigation hold" in place to ensure preservation of documents and electronically stored materials. Conduct a thorough factual investigation of the allegations and defenses, addressing both the facts needed to respond to the charge and the evidence needed to present at a hearing. There's no time for a separate hearing preparation investigation.
Avoid raising unnecessary factual disputes in written submissions and exhibits. It has been the State Division's recent practice to find probable cause if any disputed fact arises, whether genuine or material to the allegations or not. Several recent probable cause findings have made reference to disputed facts, which do not appear to be material to the allegations, stating that these would be better resolved at a hearing.
Cooperate with State Division in all respects, and be proactive, if possible, in providing the Investigator with the information he or she needs.
Upon receipt of a probable cause determination, the employer and its counsel immediately should:
Submit FOIL Requests. Make a prompt request for the State Division's entire file pursuant to the Freedom of Information Law (FOIL). The State Division's file usually contains Complainant's intake form, rebuttal to position statement, and other materials gathered during investigation of the administrative complaint. FOIL requests can now conveniently be made via electronic submission at the State Division's website. If a response is not received within 20 days of the request, follow up immediately.
"Reserve" Witnesses. After notice of a hearing is received, ensure that all necessary witnesses make themselves available, emphasizing that no adjournments are possible. Expert witnesses should be retained as soon as possible, especially given the short notice provided.
Commence Discovery. While the Division will assign counsel to unrepresented parties, it may not do so until shortly before the hearing. Nevertheless, a subpoena duces tecum should be served on Complainant immediately after a probable cause determination is made. Included in the subpoena should be authorizations for the release of medical and employment records, if relevant, to obtain those records prior to the hearing.
Recent statistics reveal a marked improvement in the State Division's timeliness of processing its caseload. In 2007, 46 percent of case investigations were completed within the recommended 180 day timeframe; 28 percent of the public hearings were completed within the 465 day recommended timeframe.6 The State Division has demonstrated its commitment to correcting its largest source of criticism—an untimely processing of administrative complaints. Consequently, employers and their counsel are spending more and more time completing the investigative phase of the process by preparing a position statement, gathering information responsive to the State Division's supplemental requests, preparing witnesses for fact-finding conferences and attending such conferences.
Costs to employers of the expanded and seemingly more adversarial investigative phase will most likely increase. In addition, due to the increased number of probable cause findings, it is far more likely that employers and their counsel will actually need to engage in discovery and hearing preparation.
Ana C. Shields is a senior associate in the Long Island office of Jackson Lewis. Since joining Jackson Lewis, Ms. Shields has practiced exclusively in the area of employment litigation and has been involved in proceedings before federal and state courts, the American Arbitration Association, and administrative agencies. She has advised employers on compliance with various state and federal laws affecting the workplace. Ms. Shields can be reached at [email protected].
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1 The Agency also enforces laws which prohibit discrimination in housing, credit, places of public accommodation and nonsectarian institutions. However, this article focuses on the enforcement of employment discrimination laws. Approximately ninety (90%) percent of the Division's caseload the last year was employment related. See New York State Division of Human Rights, Division's Performance, What is Our Caseload?, (January 14, 2008).