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XIII. DISCRIMINATION CHARGES AND EMPLOYMENT LITIGATION

Whenever any discrimination charges or employment litigation are filed or threatened, you organization should be represented by legal counsel. Counsel should then notify the appropriate administrative agency and opposing counsel that all future communications should be directed to counsel. It is critical that all communications with discrimination agencies should be approved by counsel and the appropriate organization representatives before being submitted by the employer. Under most circumstances, the organization will be required to submit to the agency a complete statement of its position with respect to the particular allegations. Such statements should be submitted even absent a request for information. Documents submitted to a discrimination agency should be limited to relevant documents concerning the employee and other similarly situated employees, and should be reviewed by counsel.

Note that information provided to administrative agencies may be discoverable in a subsequent lawsuit or available to others under the Freedom of Information Act.  Accordingly, it is important to exercise caution when disclosing information and that legal counsel review all submissions to government agencies.

The Equal Employment Opportunity Commission ("EEOC") is the federal agency responsible for enforcing the federal anti-discrimination employment statutes, which are summarized in Appendix B. The failure to file any charge with the EEOC has been held for many, though not all, anti-discrimination statutes, to be an absolute jurisdictional bar to the filing of a federal court action.

The EEOC offers mediation services. Mediation is a fair and efficient process to help resolve employment disputes and reach an agreement. A neutral mediator assists in reaching a voluntary, negotiated agreement. Choosing mediation to resolve employment discrimination disputes promotes a better work environment, reduces costs and works for the employer and the employee. See the EEOC website.

The EEOC has issued detailed guidance setting forth examples of employment practices that may be illegal under various federal laws, including the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Among these publications are the  following:

Employers must produce evidence and prove “reasonable factors other than age” were used for taking action which had a disparate impact on workers over the age of 40.  Meacham v. Knolls Atomic Power Laboratory, http://laws.findlaw.com/us/000/06-1505.html , 2008.  This case illustrates the importance of closely examining any policies that differentially impact workers of varying ages to ensure that the policies are provably based on factors other than age and that such factors are fully documented.

Other recent publications relate to health care workers and the Americans with Disability Act, (see http://www.eeoc.gov/facts/health_care_workers.html), religious discrimination (see www.eeoc.gov/policy/compliance.html; the Q & A and Best Practices documents can be accessed in pdf. Format and printed separately from the following websites: www.eeoc.gov/policy/docs/qanda_religion.html; http://www.eeoc.gov/policy/docs/best_practices_religion.html); and workers with caregiving responsibilities (see http://www.eeoc.gov/policy/docs/qanda_caregiving.html).  The guidelines for disabled veterans (see http://www.eeoc.gov/facts/veterans-disabilities-employers.html), one for employers and the other for employees, explain the differences between the Americans with Disabilities Act, enforced by the EEOC, and the Uniformed Services Employment and Reemployment Rights Act (USERRA), enforced by the U.S. Department of Labor.  Among other differences, ADA applies to employers with 15 or more employees while USERRA applies regardless of the employer’s size.

Discrimination by Association 

Title VII of the Civil Rights Act has been interpreted to bar discrimination against an employee because of the protected characteristics of a person with whom the employee associates.  The Americans with Disabilities Act prohibits discrimination because of the known disability of an individual with whom the employee is known to have a relationship or association.

The New York State Division on Human Rights ("SDHR") is empowered to eliminate and prevent discrimination in actions relating to employment, public accommodations, housing and other real estate. The New York State Human Rights law prohibits employment discrimination based on an individual's race, color, creed, sex, national origin, pregnancy, sexual orientation, military status, disability, genetic predisposition or carrier status, age (18 and older), and marital status. The law applies to employers with four or more employees.329

The New York City Commission on Human Rights ("CCHR") is the agency in New York City that has been established to eliminate and prevent discrimination in employment, public accommodations, housing and other real estate and credit transactions. CCHR has the authority to remedy discrimination only against individuals and/or entities whose actions in the City of New York result in allegedly unlawful conduct.

The New York City Human Rights Law (which is said to be among the most aggressive "anti-discrimination statutes" in the country) covers employers in New York City (the five boroughs) with four or more employees. In addition to prohibiting employment discrimination based on an individual's "actual or perceiver" race, color, creed, religion, national origin, gender, disability or marital status, the City law also prohibits discrimination based on age (with no upper or lower age limits), sexual orientation including heterosexuality, homosexuality and bisexuality, partnership status and citizenship status or alienage.329a The law also affords protection against discrimination in employment based on arrest or conviction record and status as a victim of domestic violence, stalking and sex offenses.329b Moreover, the New York City Human Rights Law prohibits discrimination on the basis of a relationship with someone who is, or is perceived to be, a member of one of the protected classes of individuals.329c

The Westchester County Human Rights Commission has jurisdiction over discrimination in employment in Westchester.330 The Westchester County Human Rights Law protects job applicants and employees against discrimination because of their actual or perceived "group identity," which includes race, color, religion, age, national origin, alienage or citizenship status, ethnicity, familial status, creed, gender, sexual orientation, marital status and disability, or or because of such person’s status as a “victim of domestic violence, sexual abuse or stalking.”  This law includes all protected classifications under existing federal and New York State laws, and adds new classes: familial status, alienage or citizenship and victims of domestic violence, sexual abuse or stalking. It also differs from existing laws in that it includes "perceived group identity." This broadens potential claimants, since someone who is not a member of the protected class may make a claim based on discrimination because the claimant was perceived to be a member of that class.

The law also contains subtle differences from existing law regarding reasonable accommodation for an employee's religion. It requires "reasonable accommodation to the religious needs of a person who regularly and customarily observes a particular day or portion thereof as a Sabbath or holy day or the observance of any religions custom or usage." Its provisions regarding the employment of the disabled are similar to the New York State Human Rights Law, and it specifically states that a pregnant employee cannot be required to take a leave of absence if a reasonable accommodation can be made.

A provision not contained in New York or federal law requires that employees must first follow the employer's complaint procedures before filing a claim with the Commission.

Supervisors who further discrimination or act in a manner inconsistent with the law may be individually liable.

The Connecticut Commission on Human Rights and Opportunities (CCHRO) is the agency that investigates and processes all cases of discriminatory practices, including discrimination in employment, housing, public accommodations and credit transactions.331

Under the Connecticut Fair Employment Practices Act (CFEPA), it is an unlawful employment practice to refuse to hire, to discharge, or to discriminate against any person in any aspect of the employment relationship based on the individual's race, color, religion, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability, physical disability, or sexual orientation.332,

The following are the steps involving discrimination charges and employment litigation.

A charge to the EEOC must be filed within 180 days after the alleged discriminatory incident or 300 days after the incident if state or city proceedings have also been initiated. A charge of discrimination filed with the EEOC must be in writing under oath or affirmation and should contain the following: (1) the name, address and telephone number of the charging party; (2) the name and address of the person against whom the charge is made; (3) a "clear and concise" statement of the facts, including pertinent dates; (4) the approximate number of employees of the respondent, if known; and (5) whether or not proceedings have begun before a state or local agency.333

Under several anti-discrimination statutes, including Title VII, the EEOC must serve notice of the charge on the party named in the charge within ten days after the charge is filed. Following the service and processing of the charge, the EEOC will generally request the respondent to provide responses to a document request and a statement of respondent's position with respect to the allegations contained in the charge. In their notice for information, the EEOC will specify the date on which the respondent's response is due. The EEOC will generally provide reasonable extensions of time in which to answer their information request(s). It is good practice to request no more than thirty days.

A complaint with the SDHR must be filed within one year from the date of the occurrence of the alleged unlawful discriminatory practice, must be verified and must contain the following: (1) the full name and address of the charging party; (2) the full name and address of the person against whom the charge is made; (3) a statement of the underlying factual allegations, including pertinent dates; and (4) whether or not related civil or criminal actions have been instituted.334

After the filing of a complaint, the SDHR must promptly serve a copy thereof upon the respondent. The respondent is not required to, but may, answer the complaint after service thereof, and may provide the SDHR with a statement of position with respect to the allegations in the complaint.335

A respondent is required to answer the complaint only after the SDHR has conducted an investigation and found that there is probable cause to believe that the allegations in the complaint have merit, as discussed below. In the event that the SDHR finds probable cause, the respondent must file a written answer to the complaint no later than two business days prior to the date scheduled for a hearing, sworn to subject to the penalties of perjury. The answer must be in writing, and must contain a separate and specific response to each and every particular allegation asserted in the complaint. A party has the right to amend its answer reasonably and fairly, subject to the discretion of the administrative law judge assigned to the case.336

A complaint with the CCHR must be filed within one year from the date of the occurrence of the alleged unlawful discriminatory practice, must be verified and must contain the following: (1) the name and address of the charging party; (2) the name and address, if known, of the person against whom the charge is made; (3) the particular factual allegations giving rise to the charge of discrimination; and (4) any other information which the CCHR may require.337

The respondent has thirty days from the date that the CCHR serves the complaint to file a verified answer. Upon request and with good cause shown, the respondent may obtain an extension of time in which to answer the complaint. The answer must specifically admit, deny or explain each of the facts alleged in the complaint, unless the respondent has no knowledge to form a belief as to the truth or falsity of the allegations. Along with the answer, the respondent may, but does not have to, provide the CCHR with a statement of its position with respect to the allegations in the complaint.338

To bring a claim, the claimant must file a verified complaint with the Westchester County Human Rights Commission within one year of the alleged discriminatory conduct. The claimant must also waive the right to pursue a claim with the New York State Division of Human Rights. However, the claimant may pursue a federal claim based on the same alleged discrimination.

The Westchester County Human Rights Commission has not yet issued regulations on administrative process, but it is probable that the procedure they adopt will be similar to New York State's.

A Complaint to the CCHRO must be filed within 180 days of the alleged act of discrimination. The Complaint must contain an affidavit under oath and include the name and address of the person alleged to have committed the discriminatory practice, the particulars of the complaint, and any other information as may be required by the CCHRO.  The CCHRO has twenty days to serve a Complaint on the respondent.339

The respondent has thirty days to file an answer to the complaint, with a possible fifteen day extension.340

The EEOC must generally conduct an investigation of unlawful employment practice charges that are duly filed with it. These investigations are geared toward determining whether there is reasonable cause to believe that a violation of the particular statute has occurred. Generally, the anti-discrimination statutes direct the EEOC to complete its investigation and make the reasonable cause determination as promptly as possible and, so far as practicable, within 120 days of the filing of the charge.  In practice, some divisions of the EEOC may take much longer times. In carrying out its investigation, the EEOC can issue subpoenas, examine witnesses, administer oaths and affirmations and receive evidence. The EEOC may request that you:

To the extent possible, legal counsel should always be present for any on-site visits or interviews of your employees by the EEOC.  If you have concerns regarding the scope of the information being sought by the EEOC (for example, private information of third parties), counsel should be requested to negotiate the scope of the information request.

The investigation is the heart of the EEOC's procedures, following which one of two things are supposed to occur: charges are either dismissed as unfounded or resolved through informal means of "conference, conciliation, and persuasion" if the charges are believed to be true, meaning that the EEOC issues a reasonable cause determination.341

After the filing of a complaint, the regional director of the division office in which it was filed, or to which it has been transferred, shall make a prompt and fair investigation of the allegations of the complaint, to be completed within one hundred eighty days after the complaint is filed. Such investigation may be made by field visit, written or oral inquiry, including the issuance of subpoenas, or any other method or combination thereof that the SDHR deems suitable. Within one hundred eighty days after a complaint is filed, the SDHR determines whether it has jurisdiction and, if so, whether there is probable cause to believe that the person or entity named in the complaint, has engaged or is engaging in an unlawful discriminatory practice. If after investigation the SDHR determines that it lacks jurisdiction or that probable cause does not exist, the SDHR issues and serves on the complainant an order dismissing the complaint.342

The CCHR has the authority to investigate a complaint through use of any one or more of the following methods: subpoenas, formal or informal interviews of witnesses, document demands and written questions. In addition, the CCHR is empowered to demand that a respondent preserve records in its possession, or alternatively, to continue to produce records kept in the ordinary course of business.343

Within ninety days of the respondent's filing, the CCHRO must make a merit assessment, based on review of the complaint, the respondent's answer, responses to the Commission's request for information, if any, and plaintiff's rebuttal, if any,.  The complaint will be dismissed if the CCHRO determines that the complaint fails to state a claim for relief, is frivolous on its face, the respondent is exempt, or if there is no reasonable possibility that an investigation will result in a finding of reasonable cause. 344

The CCHRO must determine through the most appropriate means (including mandatory mediation sessions) whether there is reasonable cause for believing that a discriminatory practice has been committed as alleged in the complaint. Dismissal by the CCHRO is allowed if the respondent has eliminated the discriminatory practice, has taken steps to prevent a like occurrence in the future, and has offered full relief to the complainant (even if complainant refuses).345

Before making a finding of reasonable cause, the CCHRO must afford each party the opportunity to provide written or oral comments on all evidence. The investigator has 190 days from the merit assessment to make a reasonable cause determination (with up to 2 extensions of three months each permitted). If the CCHRO determines that there is reasonable cause to believe a violation has occurred, either party has twenty days to request a civil action. If a civil action is requested, the CCHRO must commence an action in the superior court in the district in which the discriminatory practice allegedly occurred within forty-five days.346

If dismissed, the complainant may request reconsideration within fifteen days of the issuance of the dismissal.  The CCHRO has ninety days to reconsider or reject. If the request for consideration is rejected, the complainant's may request a release from the CCHRO within fifteen days of the denial.   Within ninety days of receipt of the release, the complainant may appeal to the superior court in the judicial district where the discrimination allegedly occurred.  If the complainant does not request reconsideration within fifteen days, the CCHRO must issue a release to sue, and the complainant will have ninety days to file suit in superior court.347

The CCHRO may issue subpoenas requiring the production of records or other documents related to the complaint in the course of its investigation.

The EEOC's activities, after serving notice of a charge, are designed to determine whether there is "reasonable cause to believe that the charge is true." If reasonable cause is found, the case proceeds to conciliation; if reasonable cause is not found, the parties are so advised and the case is dismissed. In practice, the EEOC rarely begins conciliation attempts within a short time period after the charge is filed, even though, for example, in the case of Title VII, the EEOC may bring a civil action in federal court against a respondent if it is unable to effect a conciliation which it deems acceptable within thirty days after the charge is filed. In practice, it usually takes the EEOC several months before an investigation of the charge is even commenced. The practical result is that the time between filing and the eventual resolution of the charge through EEOC conciliation and court action, if any, can span several years.348

If the SDHR determines, either on the face of the complaint, or after investigation, that probable cause does not exist, the complaint will be dismissed. The regional director for the SDHR must provide notice to all parties if the complaint is dismissed, stating in such notice the grounds for the dismissal, and containing a provision advising the complainant of a right to appeal the adverse ruling to the state court within thirty days. If the SDHR issues a probable cause determination, the case will then be scheduled for a hearing as set forth below.349

Where the CCHR determines that probable cause exists to believe that respondent has engaged or is continuing to engage in unlawful discrimination, it must issue a written notice to complainant and respondent so stating. Contained within the order, the CCHR shall set the case for hearing before an administrative law judge. A determination of probable cause is not a final order of the CCHR and is not administratively or judicially reviewable.350 Alternatively, the CCHR may issue a no probable cause determination and dismiss the complaint prior to hearing.

If there is a reasonable cause finding, the investigator will attempt to eliminate the discriminatory practice within fifty days. Within ten days, (after expiration of 50), the investigator certifies the results to the CCHRO executive director and the attorney general. Alternative dispute resolution is available for up to three months.351

If a reasonable cause determination has not been made within two years of the complaint, the respondent or complainant may petition the superior court for an order requiring the CCHRO to issue a finding as to reasonable cause.352

Generally, the EEOC is empowered to bring a civil action in federal court against the respondent where conciliation efforts have failed.353

In most cases where the complaint has not been dismissed for lack of probable cause, the SDHR must issue a notice requiring the respondent to attend a public hearing before an administrative law judge. Such notice must be served not less than five nor more than fifteen days prior to the date of the hearing. At the hearing, formal rules of evidence do not apply, and the SDHR may allow witnesses to testify by telephone, or affidavit, where good cause is shown. Within one hundred eighty days of the hearing, the administrative law judge must issue his or her findings of fact and conclusions of law and has wide discretion to issue a remedy consistent with any determination of unlawful discrimination.354

The procedural rules discussed above pertaining to the SDHR are substantially similar to the rules governing hearings held under the auspices of the CCHR.

Upon certification of the complaint, a hearing officer or human rights referee is appointed to hear the complaint or conduct settlement negotiations. The hearing must occur within forty-five days after certification of complaints.355 The case in support of the complaint is presented by the CCHRO counsel or the attorney general. The complainant may retain private counsel. If the respondent fails to file a written answer to the complaint under oath or fails to appear at the hearing, the adjudicator may enter an order of default and order necessary relief to eliminate the discriminatory practice and make the complainant whole.356

The EEOC's regulations provide that it will issue a "right to sue letter" on request of a person who has previously filed a charge after 180 days if its conciliation efforts have not been successful to that point, and if the EEOC has not filed its own suit. Otherwise, the EEOC will not issue the notice until it has disposed of the charge, usually when it has decided not to bring suit, or on dismissal of the charge.357  The Notice of Right to Sue permits the charging party to file a lawsuit on the claims raised in the EEOC charge in federal court within 90 days.

At any time after a complaint is filed and prior to the taking of testimony at a hearing, the SDHR will dismiss a complaint for administrative convenience if the complainant makes a formal request for same for the purpose of initiating an action or proceeding in another forum.358

The CCHR will dismiss a pending complaint upon written request where such dismissal is sought at least one hundred eighty days since the filing of the complaint and the CCHR finds that (a) the complaint has not been actively investigated, and (b) the respondent will not be unduly prejudiced thereby.359

A civil action is allowed if the complaint is filed with the CCHRO and a release to sue is obtained from CCHRO.360 A release to sue may be issued: (1) fifteen days after a reconsideration rejection361; (2) fifteen days after a dismissal if no reconsideration is requested; (3) after the complaint has been pending 210 days before CCHRO;362 or (4) if  21 months have passed from the date of filing without a determination as to reasonable cause.363

 

329 N.Y. Exec. Law § 290 et seq.

329a N.Y.C. Admin. Code § 8-107(1)(a); N.Y.C. Admin. Code § 8-102(20).

329b  N.Y.C. Admin. Code § 8-107.1(2)

329c N.Y.C. Admin. Code § 8-107(20)

330 Westchester County Local Law No. 17-1999.

331 Conn. Gen. Stat. § 46a-56.

332 Conn. Gen. Stat. § 46a-51 et. seq.  Physical disability is addressed in Conn. Gen. Stat. §46a-60; sexual orientation in Conn. Gen. Stat. §46a-81(c).

333 29 C.F.R. § 1601.12(a).

334 9 N.Y.C.R.R. § 465.3.

335 N.Y. Exec. Law § 2972.a.

336 9 N.Y.C.R.R. § 465.11.

337 N.Y.C. Admin. Code § 8-109.

338 N.Y.C. Admin. Code § 8-111.

339 Conn. Gen. Stat. § 46a-83(a)-(e).

340 Conn. Gen. Stat. § 46a-83(a)

341 42 U.S.C.A. § 2000e-5(b); www.eeoc.gov.

342 9 N.Y.C.R.R. § 465.6.

343 N.Y.C. Admin. Code § 8-114.

344 Conn. Gen. Stat. § 46a-83(b).

345 Conn. Gen. Stat. § 46a-83(c).

346 Conn. Gen. Stat. § 46a-83(d), § 46a-89.

347 Conn. Gen. Stat. §§ 46a-83(g), (h), 83a(b), and 84(e).

348 42 U.S.C.A. § 2000e-5(b); 29 C.F.R. §§ 1601.18-1601.21.

349 9 N.Y.C.R.R. § 465.5(d).

350 N.Y.C. Admin. Code § 8-116.

351 Conn. Gen. Stat. §§46a-83(e), 83((f).

352 Conn. Gen. Stat. § 46a-82e(d)(1).

353 42 U.S.C.A. § 2000e-5(f)(1).

354 N.Y. Exec. Law § 297.4; 9 N.Y.C.R.R. § 465.12.

355 Conn. Gen. Stat. § 46a-84(b).

356 Conn. Gen. Stat. §§46a-84(d), 84(f).

357 42 U.S.C.A. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(b).

358 9 N.Y.C.R.R. § 465.7(2)(vi).

359 N.Y.C. Admin. Code § 8-113(6).

360 Conn. Gen. Stat. § 46a-100.

361 Conn. Gen. Stat. § 46a-83a(a).

362 Conn. Gen. Stat. § 46a-101.

363 Conn. Gen. Stat. § 46a-82e(c).

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