Hearings are scheduled for two consecutive days, usually on a Monday and Tuesday, or Wednesday and Thursday. Most hearings complete within this time period. If you do not have a private attorney, a NYSDHR 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 same process applies to the employer’s witnesses. The hearings are recorded and a transcript is generated after the hearing closes. After the hearing concludes, either party can pay for the transcript. Normally, the ALJ requests each party to submit Findings of Fact and Conclusions of Law after the hearing. 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. Regardless, the Commissioner almost always signs, or rubber stamps, the ALJ’s Recommended Order.
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. In such a case, the employee must prove that workplace benefits were conditioned on the employee’s submission to sexual advances, or that benefits were withheld because the employee would not submit to such advances, or that the employee suffered unwelcome harassment, objectively and subjectively, that was severe or pervasive.