It is equally important for an employer and an employee to know and understand the definition of employment discrimination and the process for filing and defending such claims for discrimination. Below is an outline of state and federal laws as well as the agencies that enforce such laws that employers and employees in New York State should generally be aware of.
What is employment at will? A private sector employer can hire and fire an employee for any reason or without reason so long as it is not illegal. New York State is considered an “employment at will” state.
Are there Exceptions to Employment at Will? Yes, below is a list of the most common exceptions:
- Employment Contract
- Collective Bargaining Agreement
- Employee Handbook/Manual
- Political Affiliation/Participation
- Jury Duty
- Worker’s Compensation Claim
- Human Rights/Discrimination Laws
Where to File an Employment Discrimination Claim
Division of Human Rights
The New York State Division of Human Rights enforces the law through the investigation, hearing, and resolution of complaints filed by individuals against alleged discriminators.
Protected classes under state law are different than protected classes under federal law. New York City may have additional human rights laws that are not discussed here.
The New York State Human Rights Law prohibits unlawful discrimination in employment based on:
|national origin||marital status|
|gender identity or expression||domestic violence victim status|
|military status||favorably resolved arrest record|
|conviction record||predisposing genetic characteristics|
- Employees are also protected from retaliation for filing complaints or opposing discrimination.
Filing a Complaint with the Division of Human Rights
A complaint may be filed by visiting the Division’s website, at www.DHR.NY.gov, and downloading a complaint form.
What businesses are covered? All business with four or more employees but if discrimination is based on sex with respect to sexual harassment “it applies to all employers within the state.
What is the Statute of Limitations to file a Complaint? Complaints must be filed within one year of the most recent incident of discrimination or three years if it is based on sex discrimination / sexual harassment.
The Administrative Hearing at the Division of Human Rights:
- Also known as “public hearing” and is similar to a court trial.
- Both sides present evidence to support their positions only if the assigned investigator finds there is probable cause to move forward to a public hearing.
- Complainants do not need their own attorney as one can be assigned for free.
- The Commissioner’s Order After the hearing will resolve the case in favor of Complainant or Respondent.
- The Complainant may request a Right to Sue Letter after receiving a probable cause finding so that the individual may file a new complaint in State or Federal Court through their attorney.
Equal Employment Opportunity Commission (EEOC)
The EEOC enforces the following federal laws:
- Title VII of the Civil Rights Act of 1964 (Title VII),
- Age Discrimination in Employment Act (ADEA),
- Equal Pay Act (EPA),
- Titles I and V of the Americans with Disabilities Act, as amended (ADA), and
- Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA).
These laws prohibit employment discrimination based on:
|religion||retaliation for participating in proceedings under the laws|
|national origin||retaliation for opposing job discrimination or filing a charge|
What businesses are covered?
According to the EEOC, all private employers, state and local government employers, and educational institutions that employ 15 or more individuals, except for ADEA which covers employers with 20 or more employees are covered. Additionally, private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
Statute of Limitations for filing a Charge through the EEOC
- The charge of discrimination must be filed within 180 days from the date of the alleged discrimination.
- If the employer is also covered by a state or local employment discrimination law, the time to file a charge with EEOC is extended to 300 days.
- Charges through the EEOC may be filed through its portal page found here: US EEOC Portal
You should speak with an experienced employment law attorney with any questions relating to whether you have a potential claim for discrimination in the workplace or for assistance with defending or filing a claim for alleged discrimination.
This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. No attorney-client relationship is created by the distribution of this article. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Office of Regina Sarkis, PLLC.