Friday, November 12, 2010

The New York State Division of Human Rights: The Importance of Electing Your Remedies

If you have a claim of discrimination in New York, be careful before you rush to file your charge of discrimination with the NY State Division of Human Rights. Under New York's Human Rights Law (Article 15 of the NY Executive Law), you actually have a choice of where to file your charge of discrimination, and your decision has significant ramifications.

Under the Human Rights Law, you can either: (i) file a charge of discrimination with the Division of Human Rights (the DHR), which you have to do within one year of the discriminatory conduct (Section 297(1) of the HRL); or (ii) file a lawsuit in court alleging the discriminatory conduct (Section 297(9) of the HRL), which you have to do within three years of the discriminatory conduct. You cannot do both -- and by choosing the first option (filing a charge of discrimination with the DHR) you are giving up important rights, such as the right to a jury trial and the trial to enhanced damages set by a jury, instead of an administrative law judge.

There are, on the other hand, some good reasons to stick with the DHR. First, you don't need a lawyer -- filing a charge of discrimination with the DHR is easy and quick. The DHR will investigate your charge and lead you through the process without your needing counsel to advise you along the way. Also, the DHR process is quick, well, quick as compared to litigation in state or federal court. You can expect to have the matter investigated and considered within a year or so. Finally, the DHR process is entirely free. You pay nothing to file the charge and you pay nothing for it to be processed and investigated. State or federal court litigation costs money, not just in possible attorneys fees, but also in filing fees and litigation costs such as depositions.

But, if you opt to go with the DHR charge and not the lawsuit, be aware that you have selected your remedy and you cannot also file a lawsuit. If the DHR finds that there is no probable cause for discrimination, the DHR will dismiss your charge – and you will have no remaining claims under state law. If, on the other hand, you opt to file a lawsuit, you have far greater control – you or your counsel will be able to prosecute the litigation and the Court/Jury, not the DHR will decide whether or not you've been discriminated against.

If you've already filed a charge of discrimination with the DHR, do not fret -- there are available procedures to "annul" your election of remedies.

The NY State DHR procedures are complicated and the choices you make along the way have significant ramifications on your rights. If you have any questions, give Charny & Associates a call (845-876-7500) – we will help you determine how best to proceed with your claims of discrimination.



Anonymous said...

If one chooses to go through the DHR, does this mean one cannot bring suit through another means if the complaint is dismissed for no probable cause? I haven't seen that disclosed anywhere else.

I've used the DHR and I found the process highly inadequate. I would recommend that those who can afford to do so, hire a private attorney. The DHR is probably best as a last resort for the indigent, and they do dismiss a majority of cases, so that one is left having to file an appeal to the county supreme court anyway.

Nathaniel K. Charny said...

If the NY DHR dismisses your charge for lack of probable cause, you have lost your state claims. You must annul for election of remedies before that happens in order to preserve your state claims.

Anonymous said...

I wish they'd disclose that to complainants when they file. That's giving up a lot for a very small chance at justice.

Anonymous said...

If the case involves ongoing discrimination and is filed with the state division of human rights, if another incident of discrimination occurs, can that incident be handled by lawsuit? Or does it automatically fall under the Division of human rights case filed?

I filed a case for discrimination over 2007-2010 with the Division of human rights. It happened again in 2011. Can I just sue for the 2011 incident?