What happens at the New York State Division of Human Rights Hearing?
After probable cause is issued, a settlement conference occurs. If the case does not settle, a New York State Division of Human Rights hearing is scheduled for two consecutive days – usually on a Monday and Tuesday, or Wednesday and Thursday. Most of these evidentiary hearings complete within this time period.
If you do not have a private attorney, a New York State Division of Human Rights attorney will litigate the case on your behalf. During the hearing, Complainant, and any witnesses, will have to testify under oath, subject to cross-examination by counsel for the employer. The employer’s witnesses will also testify and be cross-examined. The hearings are recorded and a transcript is generated after the hearing closes.
After the hearing concludes, either party can pay for, or review, the transcript. Normally, the Administrative Law Judge (“ALJ”) requests each party to submit Findings of Fact and Conclusions of Law after the reviewing the transcript. After the ALJ receives the transcript and the submissions from the parties, the ALJ prepares a Recommended Order to the Commissioner of Human Rights. The parties have 21 days to challenge this Recommendation. Afterward, the Commissioner signs the ALJ’s Recommended Order, or makes modifications.
In general, to prove a claim of discrimination, Complainant must first establish a prima facie case of discrimination by proving that (1) he falls within a category protected by the NYSHRL; (2) his job performance was satisfactory; (3) he was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination.
Once a Complainant establishes this, the respondent, or employer, must demonstrate a legitimate, nondiscriminatory reason for Complainants’ termination – which is any reason that does not involve discrimination. Then, Complainant may demonstrate that the reason offered by respondent is not true, and is a pretext for the true motive – discrimination based on the protected characteristic.
The burdens to prove sexual harassment are different. Complainant must prove that the sexual harassment subjected her to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories. The fact that such individual did not make a complaint about the harassment to such employer,is not determinative of whether the employer is liable. The employee does not have to demonstrate the existence of an individual to whom the employee’s treatment must be compared. The employer can raise an affirmative defense that the allegedly harassing conduct does not rise above the level of petty slights or trivial inconveniences.