© 2017 Michael Livolsi Law. Disclaimers.

THE NY DIVISION OF HUMAN RIGHTS AND NY EMPLOYERS

February 28, 2017

To say that this election cycle has been contentious would be a comically gross understatement.  Much of the contention has been around issues of immigration and other areas which touch upon race, national origin, gender, gender identity, sexual preference, and a number of other areas which all, in turn, touch upon the issue of Human Rights.  Given the prevalence and publicity of discussions on this subject, I thought it might be interesting to review some statistics from New York's own Human Rights enforcement efforts.  

 

There are three major levels of enforcement bodies.  At the Federal Level, the EEOC enforces Title VII and several other federal laws that make discrimination based on race, gender, and other characteristics unlawful in areas of employment and public accommodation.  New York State enforces laws and regulations similar to Title VII, called the New York Human Rights Law, through a state agency identified as the Division of Human Rights (DHR).  Cities sometimes have their own regulations -  New York City's Commission on Human Rights, for example.   These three levels of enforcement often have work sharing agreements, so that a claim filed in one office is not re-litigated in each office separately.  The State and City of New York have some of the most effective and comprehensive Human Rights regulations, and enforcement mechanisms, in the U.S. 

 

The DHR 2015 budget consisted of $12,010,000 in state tax-levy money, and $6,000,000 in federal subsidies for the Division’s work with HUD and the EEOC.  The DHR is also a relatively efficient government office.  In at least one sense, more comes out of it than goes in.  Since 2011, the Division has resolved more cases each year than have been filed.  This means that cases and complaints filed with the DHR do not generally get bogged down in bureaucracy.  Instead, cases are moved quickly through the investigations process to the hearing stage.  

In its 2014-2015 annual report, the DHR recorded that it received 6,129 new complaints that year (unless otherwise noted, all statistics are taken from this period).  By way of comparison, California’s equivalent regulatory body, the DFEH, logged 23,770 new complaints, and Florida's equivalent regulatory body received 9,994 inquiries in the 2014-2015 annual period.  

The U.S. Bureau of Labor Statistics shows that:  

  • 2015 employment for all occupations in all industries in California (not seasonally adjusted) to be 15,496,600. 

  • 2015 employment for all occupations in all industries in New York (not seasonally adjusted) to be 8,984,890.

  • 2015 employment for all occupations in all industries in Florida (not seasonally adjusted) to be 7,925,300.

Based on these statistics, approximately 1 complaint for every 1,466 employees was filed in NY's DHR, 1 complaint for every 652 employees was filed in California' DFEH, and 1 complaint for every 793 employees was filed in Florida's Commission of Human Relations.  

 

Of the complaints filed with the DHR during the 2014-2015 annual period, 83.2% of cases were against employers, with allegations of public accommodation and housing taking up most of the remainder of the complaints.  As to the type of complaints made:

 

  • 34.7% were base on race; 

  • 33.5% based on disability; 

  •  30.1% were complaints of retaliation;

  • 22.7% were based on gender discrimination;

  • 19.1% were based on age discrimination;

  • 16.4% were based on national origin discrimination;

  • 7.3% were based on criminal record based discrimination; 

  • 6.9% were for discrimination based on religion/creed; 

  • 4.2% were for discrimination based on sexual orientation; and

  • 3.1% for marital status discrimination.  

If you noticed that these amount to more than 100%, this is because a single complaint often lists multiple bases for the alleged discriminatory conduct.  It is not uncommon, for example, for each category of discrimination to carry with it an allegation of retaliation.

DHR investigations often come to a conclusion that the employer or other Respondent do not appear to have engaged in any wrongdoing.  During the 2014-2015 annual period, the DHR issued 6,270 determinations following investigations: 

  • 63.3% of these determinations were “no probable cause”;   

  • 12.9% of the these determinations were dismissals;

  • 11.2% of these determinations were settlements; 

This leaves only 12.6% of investigations finding that there was probable cause to believe there was some wrongdoing on the part of the employer.  These cases then advance to the hearing process. 

 

After advancing to the hearing process, the Commissioner issued 840 orders:

  • 72.3% of these 840 orders were the implementation of settlements. 

  • 17%  of these 840 orders dismissed the case prior to the completion of the hearing process, and

  • 9.4% were dismissed after a hearing. 

Only 1.3% of claims were sustained as a result of a hearing.  In 2011-2012, 71.2% of orders were the implementation of settlement agreements, and, 13.7% were dismissed before a hearing, 12.5% were dismissed after a hearing, and 2.6% of charges were sustained after a hearing - a 50% decrease over approximately 4 years. 

 

 

For visual effect, consider that the entirety of the 2014-2015 commissioner breakdown pie chart, including the small sliver of orders sustaining claims,  fit within the "Probable Cause" portion of the pie chart reading results of investigations.

 

The Division, in addition to focusing on individual cases, has some focus on effecting widespread change.  For example, banks in NY were the focus of many investigations alleging the failure to accommodate for visual impairment disabilities.  Group settlements were entered into involving some of the largest banks in the state which implemented new practices providing accommodations for these disabilities.   

 

People will disagree on the what these numbers mean.  But with a 50% decrease in  sustained complaints over four years, and a fractionally small percentage of complaints resulting in findings of probable cause, I hope that we can all take pride that New York businesses value diversity, and continue to make strides in ensuring a safe workplace for everyone.  

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