S T A T E O F N E W Y O R K
________________________________________________________________________
5293
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
___________
Introduced by M. of A. MORELLE, ESPAILLAT, PERRY, P. RIVERA, GREENE,
PAULIN, CLARK, HOYT, AUBRY, CANESTRARI, BENJAMIN, WEINSTEIN, ORTIZ,
CAHILL, TOWNS -- Multi-Sponsored by -- M. of A. ALFANO, BOYLAND, BRAD-
LEY, BRENNAN, CHRISTENSEN, COOK, DelMONTE, DESTITO, DIAZ, GALEF,
GIANARIS, GOTTFRIED, HEASTIE, KOON, McENENY, MILLMAN, O'DONNELL, SCAR-
BOROUGH, WEPRIN, WRIGHT -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the executive law, in relation to the hearing of
complaints by the division of human rights and the awarding of certain
fees and costs in such complaints
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 297 of the executive law is amended by adding a new
subdivision 1-a to read as follows:
1-A. THE COMMISSIONER SHALL ESTABLISH A COMPREHENSIVE MANAGEMENT AND
TRAINING PLAN TO ASSURE COMPLAINT PROCESSING WITHIN THE TIME CONSTRAINTS
SET FORTH IN THIS SECTION. SUCH PLAN SHALL ASSURE THAT THE QUALITY OF
THE COMPLAINT PROCESSING IS NOT SACRIFICED TO ACHIEVE TIMELY RESOLUTION.
THE COMMISSIONER SHALL PUBLISH A PROPOSED MANAGEMENT PLAN WITHIN ONE
YEAR OF THE EFFECTIVE DATE OF THIS SUBDIVISION. SUCH PLAN SHALL BE
PUBLISHED IN A MANNER CONSISTENT WITH THE PUBLICATION REQUIREMENTS SET
FORTH IN THE STATE ADMINISTRATIVE PROCEDURE ACT. THE COMMISSIONER SHALL
CONDUCT A PUBLIC HEARING ON THE PROPOSED FINAL MANAGEMENT PLAN AT LEAST
FORTY-FIVE DAYS PRIOR TO THE PLAN'S ENACTMENT. THE PLAN SHALL INCLUDE,
BUT NOT BE LIMITED TO, THE FOLLOWING:
A. A COMPREHENSIVE STAFFING PLAN SETTING FORTH THE NUMBER OF STAFF
NECESSARY IN EACH SECTION OF THE DIVISION TO PROPERLY INVESTIGATE, HEAR,
AND EITHER ADJUDICATE OR RESOLVE ON THE MERITS ALL PENDING CASES WITHIN
TWO YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION;
B. A COMPREHENSIVE STAFFING PLAN SETTING FORTH THE NUMBER OF STAFF
NECESSARY IN EACH SECTION OF THE DIVISION TO PROPERLY INVESTIGATE, HEAR,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08410-01-9
A. 5293 2
AND EITHER ADJUDICATE OR RESOLVE ON THE MERITS ALL NEW COMPLAINTS FILED
WITHIN THREE YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION;
C. A PRESERVATION OF EVIDENCE PLAN WHICH PROTECTS THE INTEGRITY OF
COMPLAINANT'S DOCUMENTARY AND WITNESS EVIDENCE IN ALL CASES WHERE A
COMPLAINT HAS BEEN PENDING FOR TWO YEARS. SUCH PLAN SHALL INCLUDE TAKING
DEPOSITIONS OF WITNESSES, OBTAINING AND MAINTAINING ALL POTENTIALLY
RELEVANT DOCUMENTS, AND TAKING A COMPREHENSIVE STATEMENT FROM COMPLAIN-
ANT;
D. ESTABLISHMENT OF AN OMBUDSPERSON TO WHOM ANY PERSON MAY FILE A
GRIEVANCE THAT A CASE IS NOT BEING INVESTIGATED PROPERLY OR THAT THE
PERSON IS NOT BEING TREATED APPROPRIATELY. THE OMBUDSPERSON SHALL:
(I) BE AN ATTORNEY;
(II) BE APPOINTED AT THE LEVEL OF, AT LEAST, AN ASSISTANT COMMISSION-
ER;
(III) BE MANDATED TO UNDERTAKE IMMEDIATE INVESTIGATION OF GRIEVANCES;
(IV) HAVE THE AUTHORITY TO REQUIRE REMEDIAL ACTION TO PROMPTLY RESOLVE
THE PROBLEM IF THE COMPLAINT IS WELL FOUNDED; AND
(V) PROVIDE A REASONED WRITTEN EXPLANATION TO THE GRIEVANT IF IT IS
DETERMINED THAT THE GRIEVANCE IS NOT WELL FOUNDED;
E. ESTABLISHMENT OF A PERMANENT TRAINING ADVISORY COMMITTEE. THE FUNC-
TION OF THE TRAINING ADVISORY COMMITTEE SHALL BE TO REVIEW ALL TRAINING
MATERIAL AND PROCEDURES FOR INVESTIGATORS, ATTORNEYS, ADMINISTRATIVE LAW
JUDGES, AND OTHER PROFESSIONAL OR EXECUTIVE LEVEL STAFF AND TO MAKE
RECOMMENDATIONS TO IMPROVE THOSE PROCEDURES. THE COMMISSIONER SHALL
COMPLY WITH THE TRAINING RECOMMENDATIONS. THE COMMITTEE'S MEMBERSHIP
SHALL BE COMPRISED OF FOUR DESIGNEES APPOINTED BY THE COMMISSIONER, FOUR
DESIGNEES APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE, AND FOUR
DESIGNEES APPOINTED BY THE SPEAKER OF THE ASSEMBLY.
ALL NON-COMMISSIONER DESIGNEES SHALL BE ATTORNEYS WHO HAVE PRACTICED
OR TAUGHT IN THE FIELD OF DISCRIMINATION LAW FOR AT LEAST TEN YEARS.
COMMITTEE MEMBERS SHALL BE CHOSEN TO REFLECT A BALANCE OF COMPLAINANT
AND RESPONDENT INTERESTS. THE COMMITTEE SHALL DESIGNATE THE CHAIRPERSON
AND VICE CHAIRPERSON FROM AMONG ITS MEMBERS BY A MAJORITY VOTE. THE
COMMITTEE SHALL MEET AT LEAST QUARTERLY AND AT SUCH OTHER TIMES AS
CONVENED BY THE CHAIRPERSON. THE MEMBERS OF THE COMMITTEE SHALL RECEIVE
NO COMPENSATION FOR THEIR SERVICES, BUT SHALL BE ALLOWED THEIR ACTUAL
AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF THE DUTIES HERE-
UNDER; THE DIVISION SHALL FULLY COOPERATE WITH THE COMMITTEE AND PROVIDE
RESOURCES THAT ARE REQUESTED BY THE COMMITTEE TO CARRY OUT ITS MANDATE;
F. ESTABLISHMENT OF A PROFESSIONAL MEDIATION UNIT WHICH SHALL BE
COMPRISED OF MEDIATORS WHO HAVE AT LEAST FIVE YEARS OF NON-DIVISION
EXPERIENCE IN DISCRIMINATION MEDIATION, WHO HAVE DEMONSTRATED SUCCESS IN
SUCH EFFORTS, AND WHO HAVE SUCCESSFULLY COMPLETED DISCRIMINATION MEDI-
ATION TRAINING PROGRAMS;
G. ESTABLISHMENT OF A NO PROBABLE CAUSE REVIEW UNIT WHICH SHALL: (I)
CONDUCT A SAMPLE REVIEW OF NO LESS THAN FIFTEEN RANDOMLY SELECTED NO
PROBABLE CAUSE CASE FILES PER YEAR FOR EACH INVESTIGATOR; (II) REVIEW
ALL CASE FILES OF AN INVESTIGATOR, FOR THE PREVIOUS TWELVE MONTHS, WHERE
A REVIEWER DETERMINES THAT, IN THE SAMPLE REVIEW, THE INVESTIGATOR HAD
ONE OR MORE FILES SHOWING SIGNIFICANT INVESTIGATIVE OR ANALYTICAL DEFI-
CIENCIES; (III) TAKE REMEDIAL ACTION TO CURE ANY DEFICIENCIES FOUND IN
REVIEWED FILES INCLUDING, BUT NOT LIMITED TO, A REMAND FOR FURTHER
INVESTIGATION OR DIRECTED FINDING OF PROBABLE CAUSE; (IV) DIRECT COUN-
SELING AND REMEDIAL TRAINING FOR INVESTIGATORS AND THEIR SUPERVISORS
WHERE MORE THAN ONE DEFICIENCY CASE IS IDENTIFIED WITHIN ANY TWELVE
MONTH REVIEW PERIOD; (V) DETERMINE ALL APPEALS FROM NO PROBABLE CAUSE
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FINDINGS, ISSUE A REASONED WRITTEN FINDING, AND TAKE REMEDIAL ACTION
WHERE NECESSARY; (VI) MAINTAIN COMPUTERIZED RECORDS SHOWING, BY INVESTI-
GATOR AND REGIONAL OFFICE, SUCH THINGS AS HOW MANY CASES WERE REMANDED
FOR FURTHER INVESTIGATION OR ISSUANCE OF A PROBABLE CAUSE AS A RESULT OF
BOTH THE REVIEW AND APPEAL PROCEDURES, THE NATURE OF THE DEFICIENCIES
FOUND, AND WHETHER REMEDIAL TRAINING WAS REQUIRED; AND (VII) PREPARE
MONTHLY, YEAR-TO-DATE, AND CUMULATIVE REPORTS OF THE NO PROBABLE CAUSE
UNIT'S ACTIVITIES TO BE INCLUDED IN THE MONTHLY REPORT ESTABLISHED IN
PARAGRAPH H OF THIS SUBDIVISION;
H. ESTABLISHMENT OF A MONTHLY STATISTICAL AND MANAGEMENT REPORT WHICH
IS POSTED ON THE DIVISION'S WEBSITE. SUCH REPORT SHALL SET FORTH: (I)
ALL CASE PROCESSING STATISTICAL DATA FOR THE MONTH AND YEAR-TO-DATE,
INCLUDING BUT NOT LIMITED TO, NUMBER AND PERCENT OF PROBABLE AND NO
PROBABLE CAUSE FINDINGS AND NUMBER AND PERCENT OF COMPLAINANTS LOSING
AND PREVAILING AFTER HEARING; (II) NEW DIVISION INITIATIVES; AND (III)
IDENTIFICATION OF PROBLEM AREAS AND PROPOSED ACTIONS TO ADDRESS SUCH
PROBLEMS;
I. ESTABLISHMENT OF AN ORDER REPORTING LINK ON THE DIVISION WEBSITE
WHERE ALL COMMISSIONER'S ORDERS ARE PUBLISHED ON A MONTHLY BASIS.
S 2. Paragraph c of subdivision 4 of section 297 of the executive law,
as amended by chapter 166 of the laws of 2000, is amended and a new
paragraph c-1 is added to read as follows:
c. Within one hundred eighty days after the commencement of such hear-
ing, a determination shall be made and an order served as hereinafter
provided. If, upon all the evidence at the hearing, the commissioner
shall find that a respondent has engaged in any unlawful discriminatory
practice as defined in this article, the commissioner shall state find-
ings of fact and shall issue and cause to be served on such respondent
an order, based on such findings and setting them forth, and including
such of the following provisions as in the judgment of the division will
effectuate the purposes of this article: (i) requiring such respondent
to cease and desist from such unlawful discriminatory practice; (ii)
requiring such respondent to take such affirmative action, including
(but not limited to) hiring, reinstatement or upgrading of employees,
with or without back pay, restoration to membership in any respondent
labor organization, admission to or participation in a guidance program,
apprenticeship training program, on-the-job training program or other
occupational training or retraining program, the extension of full,
equal and unsegregated accommodations, advantages, facilities and privi-
leges to all persons, granting the credit which was the subject of any
complaint, evaluating applicants for membership in a place of accommo-
dation without discrimination based on race, creed, color, national
origin, sex, disability or marital status, and without retaliation or
discrimination based on opposition to practices forbidden by this arti-
cle or filing a complaint, testifying or assisting in any proceeding
under this article; (iii) awarding of compensatory damages AND REASON-
ABLE ATTORNEYS' FEES AND COSTS, INCLUDING EXPERT WITNESS FEES to the
person aggrieved by such practice; (iv) awarding of punitive damages, in
cases of housing discrimination only, in an amount not to exceed ten
thousand dollars, to the person aggrieved by such practice; (v) requir-
ing payment to the state of profits obtained by a respondent through the
commission of unlawful discriminatory acts described in subdivision
three-b of section two hundred ninety-six of this article; and (vi)
assessing civil fines and penalties, in cases of housing discrimination
only, in an amount not to exceed fifty thousand dollars, to be paid to
the state by a respondent found to have committed an unlawful discrimi-
A. 5293 4
natory act, or not to exceed one hundred thousand dollars to be paid to
the state by a respondent found to have committed an unlawful discrimi-
natory act which is found to be willful, wanton or malicious; (vii)
requiring a report of the manner of compliance. If, upon all the
evidence, the commissioner shall find that a respondent has not engaged
in any such unlawful discriminatory practice, he or she shall state
findings of fact and shall issue and cause to be served on the complain-
ant an order based on such findings and setting them forth dismissing
the said complaint as to such respondent. A copy of each order issued by
the commissioner shall be delivered in all cases to the attorney gener-
al, the secretary of state, if he or she has issued a license to the
respondent, and such other public officers as the division deems proper,
and if any such order issued by the commissioner concerns a regulated
creditor, the commissioner shall forward a copy of any such order to the
superintendent. A copy of any complaint filed against any respondent who
has previously entered into a conciliation agreement pursuant to para-
graph a of subdivision three of this section or as to whom an order of
the division has previously been entered pursuant to this paragraph
shall be delivered to the attorney general, to the secretary of state if
he or she has issued a license to the respondent and to such other
public officers as the division deems proper, and if any such respondent
is a regulated creditor, the commissioner shall forward a copy of any
such complaint to the superintendent.
C-1. INTEREST SHALL BE RECOVERED UPON A SUM AWARDED BECAUSE OF UNLAW-
FUL DISCRIMINATORY PRACTICES UNDER THIS ARTICLE.
S 3. Subdivision 9 of section 297 of the executive law, as amended by
section 16 of part D of chapter 405 of the laws of 1999, is amended to
read as follows:
9. A. Any person claiming to be aggrieved by an unlawful discriminato-
ry practice shall have a cause of action in any court of appropriate
jurisdiction for damages, INCLUDING COMPENSATORY AND PUNITIVE DAMAGES
AND UPON PREVAILING, SHALL RECOVER REASONABLE ATTORNEYS' FEES AND COSTS,
INCLUDING EXPERT WITNESS FEES, IN THE ACTION including, in cases of
housing discrimination only, punitive damages, and such other remedies
as may be appropriate, including any civil fines and penalties provided
in subdivision four of this section, unless such person had filed a
complaint hereunder or with any local commission on human rights, or
with the superintendent pursuant to the provisions of section two
hundred ninety-six-a of this [chapter, provided that,] ARTICLE, HOWEVER,
where the division has dismissed such complaint on the grounds of admin-
istrative convenience, on the grounds of untimeliness, or on the grounds
that the election of remedies is annulled, such person shall maintain
all rights to bring suit as if no complaint had been filed with the
division. At any time prior to a hearing before a hearing examiner, a
person who has a complaint pending at the division may request that the
division dismiss the complaint and annul his or her election of remedies
so that the human rights law claim may be pursued in court, and the
division may, upon such request, dismiss the complaint on the grounds
that such person's election of an administrative remedy is annulled.
Notwithstanding subdivision (a) of section two hundred four of the civil
practice law and rules, if a complaint is so annulled by the division,
upon the request of the party bringing such complaint before the divi-
sion, such party's rights to bring such cause of action before a court
of appropriate jurisdiction shall be limited by the statute of limita-
tions in effect in such court at the time the complaint was initially
filed with the division. Any party to a housing discrimination complaint
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shall have the right within twenty days following a determination of
probable cause pursuant to subdivision two of this section to elect to
have an action commenced in a civil court, and an attorney representing
the division of human rights will be appointed to present the complaint
in court, or, with the consent of the division, the case may be
presented by complainant's attorney. A complaint filed by the equal
employment opportunity commission to comply with the requirements of 42
USC 2000e-5(c) and 42 USC 12117(a) and 29 USC 633(b) shall not consti-
tute the filing of a complaint within the meaning of this subdivision.
No person who has initiated any action in a court of competent jurisdic-
tion or who has an action pending before any STATE administrative agency
under any other law of the state based upon an act which would be an
unlawful discriminatory practice under this article, may file a
complaint with respect to the same grievance under this section or under
section two hundred ninety-six-a of this article.
B. ANY PARTY MAY DEMAND A TRIAL BY JURY.
C. INTEREST SHALL BE RECOVERED UPON A SUM AWARDED BECAUSE OF UNLAWFUL
DISCRIMINATORY PRACTICES UNDER THIS ARTICLE.
S 4. This act shall take effect on June 1, 2011; provided, however,
that effective immediately, the addition, amendment and/or repeal of any
rule or regulation necessary for the implementation of this act on its
effective date are authorized and directed to be made and completed on
or before such effective date.