By: James L. Hyer, Esq.
For attorneys representing clients with claims of discrimination in housing, employment, public accommodations and credit the Westchester Human Rights Commission, (“Commission”), offers a convenient venue operating under straightforward rules and regulations.[i] This article addresses the key points of the procedures pertaining to the filings, investigations, and hearings within the Commission with respect to non-housing discrimination matters which are governed by separate county statute and rules as primer for attorneys.
Pursuant to New York State General Municipal Law § 239-o, “The governing board of any county, city, village or town may by resolution create a commission on human rights.” In 1999, the County of Westchester adopted a Human Rights Law and in 2008 adopted the Fair Housing Law.[ii] Thereafter, the Rules and Regulations of the Commission (“Rules”) were adopted, setting forth the manner in which Complaints of non-housing violations of Human Rights Law are to be filed and also adopted the Westchester County Fair Housing Law Rules and Regulations which set forth the manner in which Complaints regarding the Fair Housing Law are to be filed.[iii]
The filed Complaint may be amended once as a matter of right before referral to an Administrative Law Judge (“ALJ”), and thereafter at the discretion of the Executive Director of the Commission and following referral to an ALJ, at the discretion of the ALJ.[iv] Within 30 days of the filing of the Complaint, the Commission will serve a copy of the Complaint upon the Respondent and all other necessary parties with a copy of the Commission Rules and Regulations, and, within 60 days of the filing of the Complaint determine if the Commission had jurisdiction, and, within 180 days of the filing of the Complaint determine if there is probable cause to believe the Respondent has engaged or is engaging in an unlawful discriminatory practice.[v]
The Respondent must then file a Verified Answer at least 2 days prior to a Hearing, with leave to extend time to answer only granted if “good cause is shown” following a written request.[vi] Attorneys should note that a failure to address any allegation shall result in such allegation being deemed admitted, while failure to file an Answer may result in the Commission entering a default judgment against the Respondent and scheduling a hearing to proceed on the evidence in support of the Complaint.[vii] Moreover, in drafting an Answer, the Respondent is not permitted to interpose either a counterclaim or a cross-claim, although nothing in the Rules prevent the Respondent from asserting affirmative defenses.[viii]
After the filing of a Complaint, but before the issuance of a Determination and Order regarding if probable cause is found to exist, the Commission will undertake an investigation into the claims asserted within the Complaint.[ix] Upon the completion of the investigation, the Commission will issue a Determination and Order, which will only be reviewable if no probable cause exists. A request for review shall be made by the filing of a written application with the Commission within 30 days of the service of the Determination and Order of no probable cause.[x]
If a finding of probable cause has been made, the Commission will assign an ALJ to the matter and serve all necessary parties with a Notice of Referral appointing the ALJ, and at least 30 days prior to a hearing serve all necessary parties with a Notice of Hearing.[xi] Following the appointment of an ALJ, the parties may request that an Order of Compliance be issued by the assigned ALJ in the event that a party is not providing requested discovery upon a showing that such discovery is “necessary and proper,” which may be objected to by the non-responding party.[xii] While the extent and methods of discovery are in the sole discretion of the ALJ, in the event that an Order of Compliance is issued, an attorney should take note that failure to obey such an Order may result in harm to their client’s case which may include the ALJ striking their client’s pleadings or preventing submission of evidence and/or testimony at the hearing.
When scheduled, the first appearance at the Hearing will include a Preliminary Conference wherein the ALJ will require each party to provide a summary of the facts, evidence to be presented, and a list of witnesses to be called. As the ALJ has broad discretion, he or she may limit which witnesses may testify, what documents will be admissible and will seek to address all other discovery issues or procedural concerns prior to the Hearing.[xiii] In the event that an attorney is seeking to protect the privacy or trade secrets of a client, application may be made to seal or redact portions of the record.[xiv]
At the Hearing the complainant shall have the burden of proof to establish his or her case by a “preponderance of the credible evidence.”[xv] While the Rules state that “the hearing shall not be strictly governed by the rules of evidence observed by courts and hearsay evidence is fully admissible,” the ALJ is not permitted to “submit findings of fact and recommendations to the Commission for review and approval pursuant to §3-18 of these rules which are based in their entirety on hearsay evidence or entirely on other evidence which is not otherwise admissible in a court of law.”[xvi] Accordingly, a successful determination by the Commission will only be rendered if a claim is founded, at least in part, by a showing of evidence that would be admissible in a court of law.
The ALJ shall issue a Findings of Fact and Recommendations to the Commission within 60 days of the Hearing, which may include the following relief: requiring the Respondent to cease and desist from unlawful conduct; requiring the Respondent to engage in affirmative action to remedy the unlawful discriminatory practice; awarding compensatory damages; awarding punitive damages; awarding attorneys’ fees; and other authorized relief.[xvii] Within 30 days of receipt of the Findings of Fact and Recommendations, the Commission shall issue an Order adopting, modifying, or rejecting, in whole or in part, the Findings of Fact and Recommendations of the ALJ, which shall become the Commission’s final determination.[xviii]
While an attorney must evaluate numerous factors when determining whether civil litigation or administrative action should be utilized to pursue a claim of discrimination of a client, the Commission offers a viable option for matters falling within the jurisdiction of Westchester County, providing no filing fees or process server expenses, flexible evidentiary rules, access to alternative dispute resolution resources, and entrée to substantial forms of relief.
[i] See, Westchester County Human Rights Commission Rules and Regulations, July 2010
[ii] See, Westchester County Law § 700.01
[iii] See, Westchester County Human Rights Commission Rules and Regulations, July 2010; Westchester County Fair Housing Law Rules and Regulations.
[iv] See, Westchester County Human Rights Commission Rules and Regulations § 1-05(6).
[v] See, Westchester County Human Rights Commission Rules and Regulations § 1-05(4); (5)(a); (5)(b).
[vi] See, Westchester County Human Rights Commission Rules and Regulations § 1-06(2); (5).
[vii] See, Westchester County Human Rights Commission Rules and Regulations § 1-06(2); (3).
[viii] See, Westchester County Human Rights Commission Rules and Regulations § 1-06(4).
[ix] See, Westchester County Human Rights Commission Rules and Regulations § 2-01; 2-02; 2-03.
[x] See, Westchester County Human Rights Commission Rules and Regulations § 2-05(a); (b).
[xi] See, Westchester County Human Rights Commission Rules and Regulations § 3-01; 3-02.
[xii] See, Westchester County Human Rights Commission Rules and Regulations § 3-05; 3-06.
[xiii] See, Westchester County Human Rights Commission Rules and Regulations § 3-07; 3-12.
[xiv] See, Westchester County Human Rights Commission Rules and Regulations § 3-13(9)
[xv] See, Westchester County Human Rights Commission Rules and Regulations § 3-10.
[xvi] See, Westchester County Human Rights Commission Rules and Regulations § 3-15(1); 3-16(2)
[xvii] These forms of relief will only be granted to a Complainant with the exception of attorneys’ fees which may be granted to the Respondent in the event the Complainant’s conduct is found to be frivolous. See, Westchester Human Rights Law § 700.11(k).
[xviii] See, Westchester County Human Rights Commission Rules and Regulations § 3-17; 3-18