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Election of Remedies in Discrimination Cases

Perhaps one of the most important decisions you and your Westchester County discrimination lawyer can make is which forum to pursue your employment discrimination case. There are, generally, two options. The employment discrimination case can be brought in an administrative proceeding through the New York State Division of Human Rights or you can choose to file a lawsuit in New York Civil Courts. The decision on where to file is critical to how your case will progress. 

The New York State Division of Human Rights

If a complaint is filed in the New York State Division of Human Rights, the agency will investigate the allegation. They will first ensure that they have authority over the employer, then will notify the employer of the complaint. Once the employer has received the complaint, the agency will take the necessary steps to investigate. These steps include written inquiries, in-person field investigations, holding investigatory conferences with the relevant parties, and other interviews to gather all relevant facts related to the complaint. After the investigation is complete, the agency will make a determination as to whether there is probable cause to believe employment discrimination has occurred. If the investigation determines no discrimination occurred, the complainant can appeal to the New York Supreme Court. If, however, the agency finds probable cause supports the discrimination complaint, the case can go to a full hearing. 

While the New York State Division of Human Rights does provide an attorney, you can also retain a private Westchester County discrimination lawyer to represent you. The proceeding is held in front of an administrative law judge – not an appointed or elected judge. The hearing is not held in a court house and no jury is available. The rules of evidence apply in these proceedings, but appellate review of these decisions can be limited. After the hearing, the administrative law judge enters findings of fact and conclusion of law which determine whether discrimination occurs. If discrimination is not found, the case is dismissed. If discrimination is found, the judge has the authority to order the employer to cease and desist further discrimination and can order damages or back pay to the claimant. The order may be appealed to the New York Supreme Court.

Employment Litigation in New York 

The other alternative is to retain a knowledgable Westchester County discrimination lawyer to represent you in a civil lawsuit against the employer.  Civil lawsuits are, generally, initiated by the filing of a complaint against the employer. These lawsuit are filed in the Supreme Court. After the employer answers the complaint, the case enters the discovery phase of litigation. During this phase you and your attorney will gather evidence from the employer and witnesses, while the employer will also gather evidence from you and other witnesses. Often deposition, or sworn statements, are taken by the parties to fully understand each side’s legal position.   

Your discrimination lawyer willlikely file a variety of motions in an attempt to win the case without proceeding to trial. If those motions are not successful, then the case can proceed to trial before a jury of your peers. The jury will then determine whether employment discrimination occurred and the measure of damages that you are entitled to.  In a civil case, the employer may not be ordered to stop further discrimination against others within the company. The jury’s decision can be appealed to the New Your Court of Appeals. 

Each case is unique and should be carefully evaluated by an discrimination lawyer to determine which forum to file a discrimination case.  The choice needs to be looked at from a variety of angles to make sure that your interests are properly addressed. For a free consultation regarding your Westchester county discrimination case, contact a lawyer at Lynch Schwab, PLLC.  

Posted on July 28, 2014 in For Our Clients, Sexual Harassment and Discrimination