FEPA Discrimination Charge and Right-to-Sue Procedure — New York

FEPA Discrimination Charge and Right-to-Sue Procedure (NEW YORK)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

I. State Statutory Framework and Protected Classes

The New York State Human Rights Law (NYSHRL), codified at N.Y. Executive Law §§ 290–301, is enforced by the New York State Division of Human Rights (NYSDHR). The 2019 omnibus amendments (S.6577/A.8421) and follow-on legislation (2020 — all-employer coverage; 2024 — 3-year administrative SOL) made NYSHRL one of the nation's most plaintiff-friendly statutes.

Protected classes (§ 296(1)(a)):

II. State vs. Federal Differences

III. Election of Remedies (NYSDHR vs. Court; EEOC Dual-Filing)

The § 297(9) election doctrine is critical: filing a verified complaint with NYSDHR is an irrevocable election that bars a subsequent court action on the same facts, with narrow exceptions.

Election paths:

1. NYSDHR investigation + adjudication — agency proceedings; final order reviewable only by Article 78 in NY Supreme Court; comp + punitive available since 2019; no jury.
2. Direct court action (no NYSDHR filing) — file directly in NY Supreme Court; full jury trial; 3-year SOL; preserves all NYSHRL remedies.
3. NYSDHR filing then administrative-convenience dismissal — permits return to court (§ 297(9)(a)). Common where complainant decides to litigate after intake.
4. EEOC dual-filing: charge filed with EEOC is automatically cross-filed with NYSDHR. Under DeWitt v. Lieberman, 48 F. Supp. 2d 280 (S.D.N.Y. 1999) and progeny, an EEOC charge that is then automatically docketed with NYSDHR can trigger the election bar — request administrative-convenience dismissal from NYSDHR to preserve court action.

Recommendation: If litigation is the desired path, file directly in court without filing with NYSDHR. If administrative remedies are preferred (cost, speed), file with NYSDHR and accept the agency-only path.

IV. Filing Deadline Analysis

Continuing-violation doctrine under New York law: hostile-work-environment claims based on related, ongoing conduct toll SOL to last act (Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004)); discrete acts (termination, demotion) start their own clocks.

V. Damages Available

VI. Right-to-Sue Requirement and Timeline

NYSHRL does NOT require a right-to-sue notice for court action (§ 297(9) permits direct judicial filing). Three operative scenarios:

Part B — Verified Complaint (NYSDHR Filing)

Caption / Header

STATE OF NEW YORK

DIVISION OF HUMAN RIGHTS

VERIFIED COMPLAINT OF UNLAWFUL DISCRIMINATORY PRACTICE

Filed pursuant to N.Y. Exec. Law §§ 296, 297

NYSDHR Case No.: [____________] | EEOC Charge No. (if cross-filed): [____________]

Date Filed: [__/__/____]

I. Complainant Information

II. Respondent (Employer) Information

III. Date(s) of Discrimination

IV. Protected Bases (check all that apply)

☐ Age ☐ Race ☐ Creed ☐ Color ☐ National origin ☐ Citizenship/immigration status ☐ Sexual orientation ☐ Gender identity or expression ☐ Military status ☐ Sex ☐ Pregnancy ☐ Disability ☐ Predisposing genetic characteristics ☐ Familial status ☐ Marital status ☐ Domestic-violence victim status ☐ Sex-offense/stalking/trafficking victim status ☐ Retaliation ☐ Failure to accommodate (disability/religion/pregnancy) ☐ Other: [________________________________]

V. Particulars (Numbered Factual Allegations)

A. Background

1. Complainant [NAME] was employed by Respondent from [__/__/____] to [__/__/____] as [TITLE] at [LOCATION].

2. Complainant is a member of the following protected class(es): [________________________________].

3. Complainant was qualified for the position; performance reviews are summarized at Exhibit [____].

B. Discriminatory Conduct

4. On or about [__/__/____], [DESCRIBE CONDUCT]. [________________________________]

5. The conduct was committed by [NAME, TITLE].

6. Specific incidents:
   - [__/__/____]: [________________________________]
   - [__/__/____]: [________________________________]
   - [__/__/____]: [________________________________]

C. Adverse Action / Inferior Terms

7. As a result, Complainant was subjected to inferior terms, conditions, or privileges of employment (§ 296(1)(h), as amended 2019), including: ☐ Termination ☐ Demotion ☐ Failure to promote ☐ Pay reduction ☐ Discipline ☐ Constructive discharge ☐ Failure to hire ☐ Failure to accommodate ☐ Harassment ☐ Other: [________________________________].

D. Comparator Evidence

8. Similarly situated employees outside Complainant's protected class were treated more favorably: [NAME, TITLE, TREATMENT, DATES]. [________________________________]

E. Causal Connection

9. Temporal proximity between [protected activity] on [__/__/____] and adverse action on [__/__/____].

10. Direct evidence: [________________________________].

11. Pretext: Respondent's stated reason — [STATED REASON] — is pretextual because [________________________________].

VI. Statement of Particulars by Reference to Statute

The conduct violates N.Y. Exec. Law §§ 296(1) (discrimination), 296(1)(h) (harassment — inferior terms standard), 296(7) (retaliation), and 296(10) (failure to accommodate religion).

VII. Demand

Complainant requests that NYSDHR:

1. Accept and investigate this verified complaint;
2. Cross-file with the EEOC under the work-sharing agreement;
3. Hold a public hearing before an Administrative Law Judge if probable cause is found;
4. Award back pay, front pay, compensatory damages, punitive damages, civil fines (up to $100K for willful sexual harassment), attorney's fees, reinstatement, and injunctive relief.

Signature and Verification

STATE OF NEW YORK )
COUNTY OF [_______] ) ss.:

[NAME], being duly sworn, deposes and says: I am the Complainant in this matter; I have read the foregoing Verified Complaint and know its contents; the same is true to my own knowledge, except as to matters stated upon information and belief, and as to those matters I believe them to be true.

[________________________________]
Complainant Signature

Sworn to before me on [__/__/____]

[________________________________]
Notary Public, State of New York

Part C — Election-of-Remedies / Administrative-Convenience Dismissal Letter

[CLAIMANT / COUNSEL NAME]
[Street Address]
[City, NY ZIP]
[Phone] | [Email]

Date: [__/__/____]

VIA EMAIL AND CERTIFIED U.S. MAIL — RETURN RECEIPT REQUESTED

New York State Division of Human Rights
Attn: Regional Director — [REGION] Office
[Regional Office Address]

Re: Request for Administrative-Convenience Dismissal Pursuant to N.Y. Exec. Law § 297(9)(a); NYSDHR Case No. [____________]

To the Regional Director:

1. Complainant [NAME] filed a verified complaint with NYSDHR on [__/__/____] (Case No. [____________]) against Respondent [EMPLOYER].

2. After consultation with counsel, Complainant has determined that the interests of justice are best served by pursuing this matter in New York Supreme Court rather than through agency adjudication.

3. Pursuant to N.Y. Exec. Law § 297(9), as construed in Matter of James v. Coughlin, 13 A.D.3d 627, and the Division's regulations, Complainant respectfully requests that the Division dismiss this complaint for administrative convenience so that Complainant may exercise the right to commence a civil action in New York Supreme Court.

4. This request is timely; no probable-cause determination, hearing on the merits, or final order has issued. Complainant will commence the court action within three years of the most recent act of discrimination pursuant to N.Y. CPLR § 214(2) and N.Y. Exec. Law § 297(9).

5. Please confirm dismissal in writing and provide a copy of the dismissal order, which Complainant will attach to the court complaint as proof that the election bar does not apply.

Respectfully,

[________________________________]
[NAME / Counsel]

Part D — Civil Complaint (New York Supreme Court Template)

Caption

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF [________________________________]

Index No.: [____________]

VERIFIED COMPLAINT AND JURY DEMAND

I. Parties

1. Plaintiff [NAME] is an individual residing in [COUNTY] County, New York.

2. Defendant [EMPLOYER] is a [domestic/foreign business corporation] with its principal place of business at [ADDRESS] and is an "employer" within Exec. Law § 292(5) (all employers).

3. (If individual defendants) Defendant [NAME] is an individual residing at [ADDRESS] and was at all relevant times Plaintiff's [supervisor/manager/owner], individually liable as an aider-abettor under Exec. Law § 296(6).

II. Jurisdiction and Venue

4. This Court has subject-matter jurisdiction; NY Const. art. VI, § 7; Exec. Law § 297(9).

5. Venue is proper in [COUNTY] County under CPLR §§ 503 (residence) and 7804 (Article 78).

III. Administrative-Remedy Status

6. ☐ Plaintiff has not filed any administrative complaint with NYSDHR and proceeds directly in court pursuant to § 297(9). OR ☐ Plaintiff filed a verified complaint with NYSDHR on [__/__/____] (Case No. [____________]), which was dismissed for administrative convenience on [__/__/____] (Exhibit A), restoring the right to sue.

7. ☐ Plaintiff filed an EEOC charge on [__/__/____] (Charge No. [____________]) and received a Notice of Right to Sue on [__/__/____] (Exhibit B).

IV. Factual Background

8. [Expanded factual narrative incorporating Charge particulars with names, dates, documents.] [________________________________]

V. Causes of Action

First Cause of Action — Discrimination under NYSHRL (Exec. Law § 296(1)(a))

9–17. [Protected class; inferior terms; adverse action; causation.]

Second Cause of Action — Harassment under NYSHRL (Exec. Law § 296(1)(h)) — Inferior Terms Standard

18–24. [Post-2019 harassment standard — no severe-or-pervasive; no Faragher-Ellerth defense available.]

Third Cause of Action — Retaliation (Exec. Law § 296(7))

25–30. [Protected activity; adverse action; causal nexus.]

Fourth Cause of Action — Aider-Abettor Liability (Exec. Law § 296(6)) — Against Individual Defendants

31–35. [Individual supervisor liability for aiding/abetting discrimination/harassment.]

Fifth Cause of Action — Failure to Accommodate (Exec. Law § 296(3))

36–40. [If disability/religion/pregnancy — interactive process and accommodation failure.]

Sixth Cause of Action — NYC Human Rights Law (NYC Admin. Code § 8-107) (if NYC nexus)

41–46. [Broader NYCHRL standards apply.]

Seventh Cause of Action — Wrongful Discharge in Violation of Public Policy (limited under NY law — Murphy v. American Home Products, 58 N.Y.2d 293; pursue only narrow statutory hooks like Lab. Law § 740 whistleblower).

47–51.

VI. Prayer for Relief

WHEREFORE, Plaintiff demands judgment against Defendants for:

a. Back pay and benefits with prejudgment interest;
b. Front pay or reinstatement;
c. Compensatory damages for emotional distress, mental anguish, humiliation, and loss of enjoyment of life — uncapped;
d. Punitive damages — uncapped (Exec. Law § 297(4)(c), as amended 2019);
e. Civil fines (NYSDHR proceedings — up to $100,000 for willful sexual harassment);
f. Reasonable attorney's fees and costs, including expert fees (Exec. Law § 297(10));
g. Injunctive and affirmative relief, including reinstatement, policy reform, and mandatory training;
h. Such other relief as the Court deems just.

VII. Jury Demand

Plaintiff demands a trial by jury on all issues so triable.

Dated: [__/__/____]

Respectfully submitted,

[________________________________]
[ATTORNEY NAME]
[FIRM]
[ADDRESS]
Telephone: [_____] | Email: [_____]
ATTORNEYS FOR PLAINTIFF

Part E — Pre-Filing Checklist

☐ Adverse action / inferior-terms conduct documented

☐ Protected class identified (broad NYSHRL list — confirm coverage)

☐ Election-of-remedies analysis: agency vs. court election determined and documented

☐ EEOC cross-filing implications analyzed (DeWitt election trap)

☐ NYC Human Rights Law overlay analyzed (if NYC nexus — broader standards)

☐ Comparator evidence gathered

☐ Pretext evidence preserved

☐ Personnel file requested (Lab. Law § 195 — limited; rely on discovery)

☐ Wage records, performance reviews, and disciplinary documents preserved

☐ Continuing-violation analysis completed (Patterson v. County of Oneida)

☐ 3-year SOL (admin + court) calendared with 30-day buffer

☐ 300-day EEOC deadline calendared

☐ Damages computed — no caps; punitive multiplier estimated

☐ Aider-abettor / individual defendants identified (§ 296(6))

☐ Litigation hold notice sent to employer

☐ Sexual-harassment training compliance / written policy reviewed (§§ 201-g, 296-c)

☐ Arbitration agreement analyzed — note CPLR § 7515 prohibition on mandatory pre-dispute arbitration of discrimination claims (subject to FAA preemption analysis); EFAA carve-out for sexual harassment/assault

☐ Attorney's fee shifting confirmed (mandatory to prevailing complainant)

Sources and References

• New York State Division of Human Rights: https://dhr.ny.gov
• NYSDHR e-file portal and complaint forms: https://dhr.ny.gov/complaint
• N.Y. Executive Law § 296: https://www.nysenate.gov/legislation/laws/EXC/296
• N.Y. Executive Law § 297: https://www.nysenate.gov/legislation/laws/EXC/297
• S.3255 (3-year SOL extension, eff. 2/15/2024): https://www.nysenate.gov/legislation/bills/2023/S3255
• NYSDHR Press Release on SOL extension: https://dhr.ny.gov/news/governor-hochul-announces-new-statute-limitations-unlawful-discrimination
• 2019 omnibus reform (S.6577/A.8421) — removed 4-employee threshold for harassment; abolished severe-or-pervasive standard
• NYC Human Rights Law: https://www.nyc.gov/site/cchr/law/the-law.page
• Williams v. NYCHA, 61 A.D.3d 62 (1st Dep't 2009) (NYCHRL liberal construction)
• Batavia Lodge No. 196 v. NYSDHR, 35 N.Y.2d 143 (emotional distress damages)
• Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004) (continuing violation)
• DeWitt v. Lieberman, 48 F. Supp. 2d 280 (S.D.N.Y. 1999) (election bar from cross-filed EEOC charge)