Legal Ease

By Victoria Esposito, Pride Center Board Director Filing a Human Rights Complaint in New York State: An Overview

**This column presents the authors’ personal opinions and does not constitute legal advice.**

As you know, it is illegal in New York State for employers, landlords, schools, and public facilities to discriminate based on certain protected characteristics, including sexual orientation and gender expression. As you also know, the mere fact that such discrimination is illegal unfortunately does not stop it from happening. In this article, I will walk through the basic procedure to file a complaint with the Division of Human Rights in the event you believe that you have been the victim of discrimination. (Disclaimer: this column is purely informational and does not constitute legal advice. All opinions are my own.)

A couple notes about the procedure: first, the basic procedure is the same for a complaint based on any protected characteristic. So you can use this article for reference if the discrimination is based on a different trait, such as race or lawful source of income. Secondly, while you may ultimately opt to take your complaint before a judge, it will always start out as an administrative complaint. The process is simple and does not require a lawyer, though you may certainly have a lawyer help you.

The first thing you’ll do is go to the complaint overview section of the Division of Human Rights website, https://dhr.ny.gov/ complaint#overview . As you will see, this page includes a list of protected characteristics. You MUST allege discrimination based on one or more of these characteristics. So if you are gender nonconforming and you believe a landlord has refused to rent to you for that reason, you can file a complaint.

Instructions for the complaint, as well as a link to the form itself, are available at https://dhr.ny.gov/complaint#howto . Before we move on to the complaint itself, please note:

• You should type the complaint if at all possible. It is available as a fillable .pdf, so consider using that. • There are separate complaint forms for various types of discrimination. Be sure to use the correct form and send it to the correct address. • You must sign in front of a notary. The notary is just attesting that you are who you say you are, so she or he will want to see photo ID. • Unlike the notary, you are swearing to the truth of the statements. This means you should be as precise and accurate as possible.

The complaint itself is available at that same link. It asks for your personal and contact information, as well as the details of the incident. Again, you should be as precise as possible - include dates and times as well as the names of any witnesses. (Of course, you should ask the witnesses’ permission first.) If the person you are complaining about made specific statements that led you to believe you were unwelcome, include those statements as accurately as possible. If the person was acting on behalf of a company, and you believe the person had authority to act in a discriminatory way, then consider filing the complaint against both the individual and the company. You may not always have full information, particularly if you were looking at renting an apartment or if you were in a public place. You should find out as much as you can and use that. Don’t be afraid to ask for an employee’s full name or other information, and do check sources such aa tax rolls. (I recently filed a complaint, on a client’s behalf, based on a discriminatory Craigslist ad. We were able to file the complaint by using Google Maps, then driving by the property to get the address, then using the tax rolls to get the name of the LLC that owned the property and the Secretary of State’s business lookup to find the people who owned the LLC.)

You can and should attach exhibits. For example, in the case I mentioned above I attached the advertisement itself. When you sign, you will certify that you do not have any other legal action of any kind pending based on this incident. You may also explain what you want as a conciliation, such as retraining for the staff, an apology, monetary damages, or priority for housing in that accommodation. However, you do not have to do this.

You can submit the complaint by regular mail, fax, or email. My preference is email with a read receipt. If you submit by regular mail, I strongly suggest sending it return receipt and (of course) keeping a copy. Once you have done that, the DHR will send the complaint to the person you have complained about and give them the opportunity to respond - essentially to tell their side of the story. You will have the chance to read that and file a rebuttal, which is basically your answer to the response. I prefer a notarized rebuttal - however, while I think this is best practice I don’t know that it is required.

The DHR will do two primary things after all this. First, they will investigate to determine whether there is probable cause for a determination of discrimination. Secondly, they will speak to both parties and try to facilitate a settlement. The parties do not have to agree to the settlement, of course, but if there is something at stake that is easily fixable and/or the monetary damages are small, then it is entirely possible that the case will settle. Otherwise, if there is a determination of probable cause and a conciliation is not possible, you have the option of proceeding at an administrative hearing, which is less formal than a court, or going through a court proceeding. At either one you will have the chance to call witnesses and present evidence, but you may have more trouble doing so in court without a lawyer. It is also important to understand that there are appeal rights at every stage, including if the DHR finds no probable cause and you want to challenge that decision.

This is a necessarily brief overview, but I hope it has given you a general idea of the remedies available for breaches of SONDA, GENDA, and other human rights violations. DHR complaints are relatively simple and fast, and I find them a particularly useful tool in ensuring that all New Yorkers are treated equally.