SUMMARY OF KEY PROVISIONS UNDER FEDERAL, STATE, and CITY EEO LAWS

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1 SUMMARY OF KEY PROVISIONS UNDER FEDERAL, STATE, and CITY EEO LAWS I. PROTECTED CATEGORIES Protected Classes 42 USC 2000e-2(a)-(c) Prohibits discrimination based on race, color, religion, sex or national origin. NY EXEC 296 Prohibits discrimination based on age, race, creed/religion, color, national origin, sex, sex orientation, disability, marital status, military status, genetic predisposition, domestic workers, and domestic violence victims. 29 USC 623 Prohibits discrimination based on age. 42 USC Prohibits discrimination based on disability. 42 USC 2000ff-1 Prohibits employers from requesting and discriminating on the basis of genetic information. NYC Code Prohibits discrimination based on age, race, disability, creed, color, national origin, gender, alienage or citizenship status, disability, sexual orientation, marital status, partnership status, domestic violence victims, and victims of sex offenses.

2 Criminal Conviction or Arrest Record Disability Discrimination Protection NY EXEC 296(15), (16) Prohibits discrimination against individuals based on a criminal conviction or an arrest record, or a youthful offender adjudication, or a conviction that is sealed, except if the arrest or criminal accusation is then pending or where there is a direct relationship between the offense and job sought. No specific provision, but courts have considered whether discriminating against individuals based on their conviction or arrest record has a disparate impact on minorities. 42 U.S.C (2) Disability defined as a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such impairment, or being regarded as having such an impairment. 292(21) Disability defined as (a) physical, mental or medical impairment resulting from anatomical, physiological or neurological condition which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or diagnostic techniques; (b) a record of such impairment; or (c) a condition regarded by others as such an impairment. Limited to those who can perform in a reasonable manner the activities involved in the job or occupation sought or held. NYC Code 8-107(10), (11) Prohibits discrimination against individuals based on a criminal conviction and arrest record except if the arrest or criminal accusation is then pending or there is a direct relationship between the offense and job sought (16) Disability defined as any physical, medical, mental or psychological impairment, or a history or record of such impairment. Reasonable Accommodation Duty Employer must provide accommodations which will not cause undue hardship in the conduct of the employer s business. 292(21) Employer is required to provide an accommodation if it is reasonable under the circumstances and does not cause an undue hardship (18) Employer must provide reasonable accommodation unless it causes undue hardship in the conduct of the employer s business. 2

3 Opposition and Retaliation 296(7) Prohibits retaliation or discrimination against any person opposing any practices forbidden under the State Law or because the person has filed a complaint, testified or assisted in any proceeding under the State Law. 42 U.S.C. 2000e-3(a) Prohibits discrimination based on an individual s opposition to an unlawful employment practice, or because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing involving an unlawful employment practice (7), (19) Prohibits discrimination and retaliation against a person for: opposing any prohibited practice; filing a complaint, testifying or assisting in any proceeding under the City Law; commencing a civil action based on an unlawful act; or assisting with an investigation. It is unlawful for any person to attempt or to coerce, intimidate, threaten or interfere with any person for exercising rights granted or protected pursuant to the City Law. 3

4 Religion/ Creed Protection 296(10)(a) Prohibits employer, employee, or agent from imposing as a condition of obtaining or retaining employment any terms or conditions that would require a person to violate or forego a sincerely held practice of his or her religion. Protects employees who observe the Sabbath or holy days in accordance with requirements of their religion. 2000e-(j) Protects all aspects of religious observance and practice, as well as belief. Protected practices include unconventional, nontraditional beliefs if they are sincerely held (3)(a) Prohibits employer, employee, or agent from requiring, as a condition of obtaining or retaining employment, a person to violate or forego practicing his/her creed or religion, including the observance of holy day or religious custom. Accommodation/ Undue Hardship 2000e-(j) Employer must accommodate an employee s sincere religious belief unless it is an undue hardship. 29 C.F.R (p) Generally, undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity 296(10)(b)(d) Requires good faith effort to accommodate observance of Sabbath or holy days unless it will cause an employer undue hardship. Undue hardship is defined as an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system). Burden of proof on employer to show undue hardship (3)(b) Requires accommodation of person s religious needs where it does not cause undue hardship in the conduct of the employer s business. Must accommodate observance of Sabbath and holy days as well as reasonable travel time. Burden of proof on employer to show undue hardship. 4

5 II. ADMINISTRATIVE AGENCY PROCEDURES Initiation of Administrative Action 297(1) Any aggrieved person, the Attorney General, or the State Division may file a verified complaint. 42 USCA 2000e-5 (b) An aggrieved party or the EEOC may file a charge alleging an unlawful employment practice (a), (c) An aggrieved individual, an employee, or the City Commission may initiate a complaint. Statute of Limitations 2000e-5 (f) In New York a charge must be filed within the earlier of 300 days after the state or local proceedings terminate. 297(5) 1 year for administrative filing (e) 1 year for administrative filing. Limits on Jurisdiction/ Election of Remedies 2000e-5(c), (d) The EEOC will wait 60 days if a state or local proceeding is commenced unless the proceeding earlier terminates, or the state or local agency waives its right to process the charge. 29 USC 626(d) No civil action may be filed under the ADEA until 60 days after a charge of unlawful discrimination has been filed with the EEOC. 297(9), 300 The State Division will not proceed if complainant has previously initiated a court action or has an action pending before it or a local human rights agency. A final determination of a complaint before the State Division shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned (f) The City Commission will not process a complaint when (1) complainant has previously initiated a civil action alleging the same discriminatory practices; (2) complainant has a complaint pending with any other administrative agency alleging the same unlawful practice; or (3) the State Division has issued a final determination on complaint alleging the same unlawful practice. 5

6 Answer No answer is required. However, under 29 CFR , a respondent is expected to respond to the statements contained in the charge. No formal answer to an administrative charge is required A verified answer must be filed within 30 days after a copy of the complaint is served on respondent. Withdrawal of Complaint or Charge 29 CFR A charge may be withdrawn at any time, although withdrawal is contingent on the EEOC s consent (a) - Complaint may be withdrawn at any time before the service of a notice of hearing on the party. After such service a proceeding may be discontinued by the complainant on notice to the res`pondent and with the consent of the Commissioner A complainant may withdraw the complaint: (1) at any time before it has been referred to an administrative law judge; and (2) at the discretion of the Commission after the complaint is referred to an administrative judge. Dismissal for Administrative Convenience A charge may be dismissed where: the charge is not timely filed or otherwise fails to state a claim on its face; claimant fails to provide necessary information or fails to cooperate with the investigation; claimant cannot be located; or claimant refuses to accept a reasonable settlement offer. 297(9) The Division may dismiss a complaint for, among other reasons, where the complainant s objections to a proposed conciliation agreement are without substance or processing the complaint will not advance the State s human rights goals, up until the commencement of the administrative hearing The City Commission has discretion to dismiss a complaint for administrative convenience at any time prior to the taking of testimony at a hearing If complaint is dismissed for administrative convenience, complainant may still file private civil action pursuant to City Law. 6

7 Probable or Reasonable Cause Standards 42 USCA 2000e-5(b) Reasonable cause exists where the EEOC has determined that it is more likely than not that an unlawful employment practice transpired. (29 CFR ) 9 NYCRR 465.5(d) - Is there probable cause to believe that the person named in the complaint... has engaged or is engaging in an unlawful discriminatory practice? does probable cause exist to believe that the covered entity has engaged or is engaging in an unlawful discriminatory practice? Administrative Hearing 2000e-9 No administrative hearings are provided (except for federal employees). NY EXEC 297(4)(a) Provides for a hearing before an administrative law judge after probable cause is found. Discovery at discretion of ALJ Provides for a hearing before an administrative law judge after probable cause is found. Limited discovery permitted. Final Determination Either reasonable cause or no reasonable cause is found. Where no reasonable cause is found, notice of right to sue will be sent indicating that the complainant has 90 days to bring a civil action. (29 CFR (a)). If reasonable cause is found, conciliation procedures are employed. (29 CFR (a)). 297(4)(c) Following a finding of probable cause and a hearing on the merits, the administrative law judge submits a recommended order to the Commissioner who, upon review of the evidence submitted at the hearing, then issues a final order Following a finding of probable cause and a hearing on the merits, the administrative law judge submits a recommended decision and order to the Commission, which then issues a final decision and order. 7

8 Judicial Review No judicial review of an EEOC determination is available. The aggrieved party has the right to commence a civil action within 90 days from receipt of the determination. (29 CFR (a); 29 CFR (b),(e)) 298 Review must be sought within 60 days. The Commissioner s decision will be affirmed if its findings of fact are supported by sufficient evidence on the record as a whole (h) Judicial review must be sought within 30 days. The Commission s decision will be affirmed if its findings of fact are supported by substantial evidence on the record as a whole. III. PRIVATE CIVIL ACTIONS Initiation of Action NY EXEC 297(a) A court action may be filed unless the complaint was resolved administratively. 29 CFR (e) A private litigant may file a proceeding in court within 90 days following receipt of a right to sue letter from the EEOC. NY CODE A private civil action may be filed. Plaintiff must serve a copy of the complaint on the City Commission and Corporation Counsel. 29 U.S.C.A. 626 (d), (e) A private litigant may commence, under the ADEA, a court action 60 days after the filing of a charge, or within 90 days after receiving a notice of the EEOC s dismissal of a charge. 8

9 Statute of Limitations 29 CFR (e) A private litigant may file a proceeding in court within 90 days following receipt of a right to sue letter from the EEOC. 29 U.S.C.A. 626 (d), (e) A private litigant may commence, under the ADEA, a court action 60 days after the filing of a charge, or within 90 days after receiving a notice of the EEOC s dismissal of a charge. 297(9) Three years as provided in Civil Practice Law and Rules 214(2) (d) 3 years; however, the statute of limitations is tolled while a complaint is pending before the Commission unless it is dismissed for administrative convenience due to the complainant s malfeasance, misfeasance, or recalcitrance. 9

10 IV. REMEDIES UNDER FEDERAL, NYS & NYC LAWS Back Pay Front Pay TITLE VII (Civil Rights Act of 1964) ADEA (Age Discrimination in Employment Act) ADA (Americans with Disabilities Act) State Human Rights Law Administrative Hearing Court Action City Human Rights Law Administrative Hearing Court Action Emotional Distress Punitive Damages Liquidated (Double) Damages Attorneys Fees Up to Up to $300,000 1 $300,000 1 Up to Up to $300,000 1 $300, Compensatory and punitive damages under Title VII and the ADA are only available for intentional discrimination (not disparate impact). Damages are available up to a maximum of $300,000 per violation, depending upon the number of individuals employed by the employer. 10