After a complaint is filed, the Commission's Law Enforcement Bureau (LEB) investigates the allegations. After investigation, LEB determines whether probable cause exists to credit the allegation(s) of unlawful discrimination. LEB then issues a Determination of Probable Cause or No Probable Cause. All decisions related to LEB intake, investigations, determinations and its other enforcement operations are made exclusively within LEB and are made independently from any other Commission office or administrative agency.
Complainants receiving LEB No Probable Cause Determinations may request to appeal such determinations. These appeal requests are reviewed by the Commission's Office of the Chairperson (OC), which is not involved in LEB enforcement operations. After reviewing requests, the OC may remand appropriate matters back to LEB for continued investigation or prosecution, or issue final orders affirming No Probable Cause Determinations.
New York City Human Rights Law § 8-115 permits the Commission to attempt resolution of complaints filed with the agency through the use of mediation. The Commission’s Office of Mediation and Conflict Resolution (“OMCR”), independent from any other Commission office, provides parties with mediation services, at no cost, to help facilitate resolution. In mediation, a neutral third party known as a mediator helps the parties reach a voluntary, negotiated resolution. A mediator does not take sides or decide who is right or wrong. Instead, the mediator is impartial and neutral.
Any party may request mediation instead of continuing with the investigation or litigation after the Verified Complaint, Answer(s)/Position Statement(s), and Rebuttal have been filed with LEB. To be eligible for mediation, all parties, including LEB, must agree. Mediation may also be available when LEB is attempting resolution through the use of conciliation or after LEB issues a finding of probable cause. If any party is interested in pursuing mediation, they are requested to contact the LEB attorney.
If a case is resolved in mediation through OMCR, the parties will sign a settlement agreement, and LEB will close the case without further investigation. In the event the case does not settle and the mediation is terminated, OMCR will refer the case back to LEB for further processing.
After LEB issues a Determination of Probable Cause, LEB refers the matter to the Office of Administrative Trials and Hearings (OATH), where the matter is assigned to an OATH administrative law judge (ALJ) to preside over a trial and issue a recommended decision and order (also referred to as a "Report and Recommendation"). OATH is a separate City agency from the Commission, and is overseen by OATH's Commissioner and Chief Administrative Law Judge. If litigation continues at OATH, LEB is the party prosecuting the matter against the respondent, the party defending against the action; and the action is tried before an OATH ALJ, who serves as a neutral adjudicator. At OATH, the complainant may serve as a witness or may seek to "intervene" as a third party consistent with OATH's Rules of Practice. If the complainant requests to intervene and the ALJ grants the request, the complainant becomes a party to the litigation along with LEB and respondent. At any point during this process, the parties can decide to resolve the matter through settlement, and/or LEB can also decide to withdraw the case.
After the trial, the ALJ issues a Report and Recommendation, which may include findings of fact, decisions of law, and recommendations on damages and civil penalties. The Commission's Office of General Counsel gathers the Report and Recommendation, along with any post-trial comments or objections submitted by the parties, and provides the information to the OC for a final Decision and Order. The OC reviews the matter, including the trial transcripts, evidence presented at trial, ALJ's Report and Recommendation and any post-trial comments or objections de novo, and then issues its Decision and Order, adopting or rejecting – in whole or in part – the ALJ's Report and Recommendation.