Somehow, despite this summer’s fight over whether Democrats or Republicans controlled the New York State Legislature, members of the Assembly and Senate and Gov. David Paterson found time to amend the New York State Human Rights Law.
Effective July 6, 2009, the law expanded the application of civil fines and penalties in cases of employment discrimination occurring on or after that date.
The change means the stakes for making an employment law mistake have dramatically risen. Until now, the imposition of civil fines had been limited to cases of housing discrimination.
According to Galen D. Kirkland, commissioner of the Division on Human Rights, the “... amendment to our law will provide the division with a very powerful tool to fight discrimination in the state. Now that we can assess fines and penalties in the majority of the cases received by the division, we will be better equipped to further the agency’s mission to protect the human rights of all New Yorkers.”
With the enactment of the amendment, fines may now be assessed against all cases of employment discrimination.
Since employment discrimination cases account for 80% of Division of Human Rights cases, the change is significant. Employers now face the prospect of a fine of up to $50,000 for discrimination. If the conduct is found to be “willful, wanton or malicious,” the potential fine increases to $100,000.
On the bright side, employers with fewer than 50 employees will be allowed to pay the civil fines and penalties on an installment plan.
Why the change?
The purpose of the amendment, according to the division, is to:
“… greatly advance the Division’s mission to exercise the police power of the State for the protection of the public welfare, health and peace of the people of this State, and in fulfillment of the provision of the constitution of this State concerning civil rights. N.Y. Exec. Law § 290.1. The fines imposed will further the goal of equal opportunity in New York State by acting to deter and reduce discrimination on the basis of race, color, creed, national origin, sex, age, disability, sexual orientation, marital status, military status, and other protected categories.”
Fines imposed for employment discrimination in violation of the law will be in addition to any damages awarded to a prevailing complainant. “The fines are payable to the state, and will serve both to deter discrimination and to compensate for the harm caused to the public interest by unlawful discrimination,” according to the division.
Employees who prove discriminatory employment action under state law may be granted an affirmative relief from the employer (e.g., be hired, promoted or reinstated) and receive compensatory damages (economic damages and emotional distress damages).
Calculating the penalty
There is presently little guidance on how the penalties will be applied. The division promises future guidelines.
It may be that the standards applied in housing discrimination cases will be considered relevant. In housing discrimination cases, the factors that determine whether civil fines and penalties are appropriate are:
- Whether the respondent had previously committed unlawful housing discrimination
- The respondent’s financial resources
- The degree of the respondent’s culpability
- The goal of deterrence.
The division might consider whether the employer has an established anti-discrimination policy, if it has been distributed to employees, whether there is an effective complaint procedure and whether employees have been trained in the law and the employer’s policies. We will bring you further information as it becomes available.
There is also pending legislation in New York that would allow individuals to recover punitive damages and reasonable attorneys’ fees for human rights violations.
What employers should do now
Obviously, it is now more important than ever to prevent discrimination and fix any problems before they end up before the Division on Human Rights.
Now is a good time to review your discrimination policies and update employees—especially supervisors and managers—on how to handle discrimination complaints.
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