For complaints filed on or after October 12, 2021, the New York State Division of Human Rights (“NYS DHR” or the “Division”) will no longer issue Commissioner’s Orders discontinuing complaints after private settlements. This is a significant change to the NYS DHR’s long-standing practice of allowing parties to privately settle complaints before case closure in matters where the complainant was not assisted by NYS DHR counsel.
This change will have a huge impact on NYS DHR complaints because currently nearly half of all post-probable cause settlements are private settlements without any public record of the terms. Citing benefits of “increased transparency and good governance,” the NYS DHR stated that it has a vested interest in ensuring that the terms of any settlement comply with the intent of the Human Rights Law. The change in protocol is reflected in the following table:
| Complaint filed BEFORE October 12, 2021 | Complaint filed AFTER October 12, 2021 | |
|
Complainant ASSISTED BY NYS DHR attorney |
The parties can either (1) settle through an Order after stipulation that indicates the terms of the settlement or (2) proceed through the Division’s public hearing process. |
The parties can either (1) settle through an Order after stipulation that indicates the terms of the settlement or (2) proceed through the Division’s public hearing process. |
|
Complainant NOT ASSISTED BY NYS DHR attorney |
After a private settlement is reached, the NYS DHR issues, upon request, a Commissioner’s Order confirming that the matter is resolved, but not disclosing the terms of the settlement. |
The parties can either (1) settle through an Order after stipulation that indicates the terms of the settlement or (2) proceed through the Division’s public hearing process. |
Complainants who expect confidentiality will now think twice before filing with the NYS DHR, and employers may want to consider the implications of entering into NYS DHR settlements, given that confidentiality terms may no longer be on the table. However, it is unclear whether this policy applies only to cases in which probable cause has been found, or whether the parties may resolve a case at the preliminary, investigatory stage without these restrictions. We will continue to monitor the NYS DHR for further developments.
If you have additional questions or concerns about NYS DHR procedures and its new policies, please contact Chaim Book at cbook@mb-llp.com, Sheryl Galler at sgaller@mb-llp.com, or Melanie Sarver at msarver@mb-llp.com.
