Westchester County has its own human rights law. In December 1999, the Democratic-controlled County Board of Legislators, by a 12-to-5 vote, approved Westchester County Laws, Chapter 700. Although this new law goes into effect 90 days after enactment, the new 15-member Westchester County Human Rights Commission, by law, cannot accept discrimination complaints for filing until July 1, 2000. That day happens to be a Saturday. Moreover, the County Board of Legislators expects the new Commission (which has yet to be named) to adopt procedural rules and regulations before actually accepting discrimination complaints. Westchester joins Albany, Nassau and other counties having their own human rights commissions because of the “serious backlog” and lengthy delays at the New York State Division of Human Rights. Some Westchester cities (e.g., Yonkers) previously created their own human rights commissions for the same reason. However, Westchester’s new law and commission are by no means simply an alternative to the State Division. There are numerous special jurisdictional and procedural provisions in the new Westchester law that set its human rights commission apart. Since employees will have the option of filing their discrimination complaints with this new County commission instead of with the State Division, personnel directors have one more law to learn.
This article will focus on the employment sections of the new Westchester law, which also covers discrimination in public accommodations, housing accommodations, commercial space, land transactions, and the issuance of credit. Like the State Human Rights Law, employers with four or more employees are covered but only for discriminatory practices “which occurred in Westchester County.” It is the situs of the discriminatory practice that controls, not the company’s or the complainant’s residence or workplace. A special family business provision excludes any employer “where at least two-thirds of the employees are the children, parents, spouse or relatives within the third degree of consanguinity, or the spouses of such employee.”
Westchester County’s protected group listing generally follows the State law list. The broad State definition of disability, for example, covering any medically-diagnosable condition, temporary conditions, and those that do not substantially limit a major life activity, is adopted, as is the State law’s new reasonable accommodation definition. There are notable exceptions, however, in comparison to the State law.
The newest State protected classification (genetic predisposition or carrier status) is missing from the Westchester law. “Familial status” was apparently added to the Westchester law at the last minute as it appears in many but not all sections of the new law. A definition is missing as well. Presumably, the State definition of “familial status” (covering (1) any person who is pregnant, has a child, or is in the process of securing legal custody and (2) anyone under age 18 living with a parent) at Executive Law Section 292(26) applies. “Alienage or citizenship status,” which appears in the New York City human rights law but not in the State law, was added to the new Westchester law. The New York City definition (the citizenship of any person or the immigration status of any person who is not a citizen or national of the United States) is also adopted. Finally, the County’s religious discrimination provision (and the corresponding accommodation requirement) differs slightly from the corresponding State provision.
The most controversial part of the new Westchester law is its prohibition of discrimination on the basis of sexual orientation. New York State is one of 39 states whose laws do not prohibit such discrimination. This provision, which is borrowed verbatim from the current New York City law, attracted the most media attention during the Board of Legislators’ deliberations. The legislation committee’s accompanying memorandum goes out of its way to restate and amplify the legislative intent on this point. That memorandum “highlights” that the new law “is not to promote any particular course of conduct or way of life” and “does not allow for the expansion or alteration of the right to marry.” Finally, the new law uses the City law’s term “gender” (defined as the biological characteristics of being male or female) rather than the State law’s term “sex.”
The Westchester law, unlike the State law, covers “agents” of employers. It also has no lower age limit for age discrimination in employment claims unlike the State law, which only covers persons age 18 or older. “Perceived” discrimination is covered by prohibiting discrimination because of someone’s “group identity,” a new phrase. In fact, complaints may have to allege discrimination because of one’s “actual or perceived group identity.” The protected group concept has arrived.
The charge-filing period is one year as it is under both City and State laws. Compensatory damages can be awarded but punitive damages are excluded in all employment cases. That conforms to the State law. The Westchester Commission, in its discretion, can award any party (even a respondent) costs in the form of:
- reimbursement for actual expenses reasonably incurred and
- reasonable attorneys’ fees, but only those “resulting from frivolous conduct.”
Such awards may be made against either parties or their attorneys. Frivolous conduct is defined as:
- making a legal argument that “is completely without merit” or that is asserted “primarily” for delay or “to harass or maliciously injure another” or
- making false factual statements.
Frivolous conduct also includes making a frivolous application for these sanctions. Finally, while the Commission itself can initiate complaints, those complaints cannot seek compensatory (or punitive) damage remedies.
A complaint of discrimination must be verified. It must be accompanied by a special “waiver and relinquishment” form whereby the complainant specifically waives all rights to file a complaint based on the same transaction or occurrence with the State Division or with any local Westchester human rights commission. Within 30 days after a complaint is filed, the Commission serves a copy by mail on the respondent and all “necessary parties.” Time periods thereafter are dated from the date the complaint is filed. The Commission first determines within 60 days whether it has jurisdiction, which can be quite complex. Within 120 days, it determines whether there is probable cause to believe the respondent engaged in an unlawful discriminatory practice. If it finds probable cause, the Commission, unlike the EEOC, can hold evidentiary hearings before either itself or an administrative law judge. Unlike the City law, no answer is required of a respondent until after probable cause is found and until two days prior to the hearing.
The jurisdictional rules are complex since there are many commissions and courts that can entertain discrimination complaints. The Westchester Commission has no jurisdiction if the complainant has filed a civil action “in any court” based on the same transaction or occurrence unless that civil action is first withdrawn or voluntarily dismissed. It has no jurisdiction where another local Westchester city, town, or village commission would have jurisdiction. The Westchester Commission will not accept complaints where the same complaint has been filed with the State Division or with a local Westchester commission and will not accept transfers of cases from the State Division. The only exception is that complainants can ask the Westchester Commission to enforce a determination entered within the last 12 months by a local Westchester commission (not the State Division) that the respondent committed an unlawful discriminatory practice.
There is one more unique jurisdictional rule. Complainants must exhaust their internal company procedures before filing complaints with the Westchester Commission. To qualify, a company must have a written policy establishing an affirmative action, equal employment or similar office or department that would have jurisdiction over the subject matter of the complaint. There are two exceptions to this internal exhaustion requirement.
- First, the complainant can file a Westchester Commission complaint if he/she filed an internal complaint and no determination was made within one year.
- Second, complainants can escape this internal exhaustion requirement by alleging their employer carried out a pattern of unlawful discrimination whereby identical or substantially similar acts were committed against two or more similarly situated persons within the past twelve months.
- Finally, complainants can seek the Westchester Commission’s assistance if the employer’s office or department determined within the past 12 months that unlawful discrimination occurred and the complainant wants to enforce that internal determination.
These complex jurisdictional points are quite important because, as noted, the Westchester Commission must make an initial determination within 60 days after the filing of the complaint whether it has jurisdiction. If the Commission finds it does not have jurisdiction, it must issue an order dismissing the complaint. That complainant is in real trouble because he/she had to waive any and all rights to file State Division or local Westchester discrimination charges when filing that jurisdictionally defective complaint.
The Westchester Commission, “at any time after the filing of the complaint,” can propose mediation and conciliation. Like the State Division, the Commission can approve conciliation agreements that the complainant refuses to sign and proceed to dismiss the complaint. There are special (and interesting) confidentiality rules for “any alternative dispute resolution process” used by the Commission. Statements made during those proceedings are confidential but only during Commission procedures and not during other proceedings. Finally, any party’s rejection of a mediator’s recommendation also remains confidential.
Complex jurisdictional rules and overlapping jurisdictions complicate a personnel director’s life. A new law with new rules must be learned since, one day, a letter can arrive from the Westchester County Human Rights Commission enclosing a discrimination charge. Only time will tell whether this brand-new Commission, with its own limited resources (the Commissioners are not paid), will contribute to the solution or simply add to the problem.
*article courtesy of Nixon Peabody LLP.