§5.3 B. New York Dhr Procedure

• Jurisdiction: New York

B. New York DHR Procedure

In New York State, claimants must file a complaint or charging document with the DHR within one year, pursuant to DHR Rule of Practice 465.3(e), although claimants of sexual harassment will have three years to file with the DHR given the Governor's signing of the Amendments Act on August 12, 2019 (see Chapter 1, supra). That change took effect one year from August 12, 2019 (or on August 12, 2020), while the time frame remains one year for other claims of discrimination or harassment.

However, in New York State, a complainant/plaintiff has the option to elect remedies—meaning in New York there is no requirement to first file with an administrative agency. The complainant/plaintiff may choose to file either with the DHR or State Supreme Court (a trial court in New York) under the Human Rights Law. If the avenue chosen is a complaint filed in Supreme Court, then a three-year statute of limitation applies for the state law claims, pursuant to CPLR 214(2). But the complainant cannot file in both New York Supreme Court and the DHR; they must choose one or the other. Once the election of remedies is made, if the selection is a filing in DHR the only avenue to Supreme Court thereafter on the state charges (whether complainant prevails or is dismissed in DHR) is through an appeals process—Article 78 of the Civil Practice Law and Rules—not through a plenary action in court starting the case over from scratch.⁴¹⁸ The same is true in New York City.⁴¹⁹

Furthermore, be aware that in New York City, Mayor Bill DeBlasio signed the "Stop Sexual Harassment in NYC Act" into law on May 9, 2018, thereby amending certain time frames for filing within the City of New York—complainants have three years, not one year, to file with the N.Y.C. Commission on Human Rights in cases of discriminatory practices, including gender-based harassment.⁴²⁰

The procedure in DHR is similar to that in the EEOC with regard to the initial filings, investigations, and attempts at mediation/conciliation (although in DHR conciliation is the term before a determination),⁴²¹ while a significant divergence from the federal procedure takes place if the agency makes the determination that there is probable cause that discrimination, harassment, or retaliation occurred. In the DHR, administrative law judges are empowered to hold trials (bench trials, non-jury), and issue awards to prevailing complainants. Their power to issue awards is very similar to that of state supreme court...