Defending Discrimination Claims

Defending Discrimination Claims

Allegations of discrimination pose unique challenges for employers. Unlike other types of employment-related claims, they may result in substantial reputational damage even when complaints are unsubstantiated. Employers may also have broad responsibility for the actions of their employees, customers and others coming into contact with employees because employees must be protected from discrimination and harassment by others. To prevent, address, and defend against discrimination claims, employers should consult experienced employment attorneys regarding the best ways to minimize risks and liability.

What is Workplace Discrimination?

Workplace discrimination is the inferior treatment of an employee because of a characteristic protected by law.  These include race, color, religion, sex, national origin, age, disability, pregnancy, sexual orientation, and gender identity.  Discriminatory conduct can occur in hiring, firing, promotions, and other terms and conditions of employment.  Harassment is also prohibited as a form of discrimination.  Finally, employers cannot retaliate or take adverse action against someone who reports or threatens to report discriminatory conduct.

While most people think of discrimination as overt and intentional, employers may also be held liable for business policies that have an unintentional discriminatory effect.  As a result, it is crucial for employers to have an attorney review their employment policies and practices for potential concerns.  An employment lawyer can also advise regarding which laws apply to the employer as the requirements may vary under federal, state, and local law.

How Can Employers Minimize the Risk of Workplace Discrimination?

Employers should develop appropriate policies and procedures to prevent or minimize workplace discrimination.  A written employee handbook is essential and should set forth the company’s policies against discrimination and outline procedures for making a complaint.  Employee training, particularly for supervisors and hiring managers, is also a good idea (and in some cases, mandatory) to minimize potential discriminatory conduct.

In developing these policies, it is important to consult an attorney regarding any specific requirements under federal, state, and local law.  For example, sexual harassment laws in New York and other places have specific provisions regarding written policies and training of all employees.

If a complaint is made, employers must follow their own written procedures and conduct an investigation and respond as appropriate.  Employee allegations and the employer’s response to them must be carefully documented to justify any actions taken.

How Can Employers Defend Against Discrimination Complaints in New York?

New York State and New York City have their own discrimination laws and enforcement mechanisms. Both have agencies charged with enforcing the law, but also allow employees to bypass the agencies and go straight to court.

New York State

The New York State Division of Human Rights (NYSDHR) handles enforcement of workplace discrimination laws. If an employee files a complaint with the NYSDHR, the process begins with the agency reviewing and investigating the complaint. The parties are then invited to resolve the matter through a conciliation proceeding, where they are required to cooperate. If an agreement is reached, the NYSDHR has the right to review and approve it. If no agreement is reached, the NYSDHR will decide whether there is probable cause that the employer engaged in discriminatory conduct. This must be done within 180 days after the complaint is filed.

If no probable cause is found, the complaint is dismissed but the employee can appeal to state court. If probable cause is found, the complaint is sent to an administrative law judge. The employer must file an answer to the complaint and a public hearing will be conducted. The parties are also required to attend a settlement conference. If the parties fail to settle, the judge will issue a final order, which can be appealed to state court.

Employees must file a complaint with the NYSDHR within one year of the last alleged act of discrimination. Where an employee chooses to go straight to court instead, the suit must be brought within three years of the last act of discrimination.

New York City

Employees in New York City who experience discrimination can file a complaint with the New York City Human Rights Commission’s (NYSHRC) Law Enforcement Bureau (LEB). The LEB will serve a copy of the complaint on the employer and the employer must file an answer within 30 days of service. As with the NYSDHR, the LEB will review and investigate the complaint and determine whether there is probable cause that the employer engaged in discriminatory conduct. The decision is not appealable, but the aggrieved party may apply for review within 30 days of the determination. As with the state process, LEB will invite the parties to a conciliation proceeding. If the parties do not resolve the matter, an administrative law judge will be assigned who will also conduct hearings and settlement conferences before issuing a final order.

Complaints must be filed within one year of the last alleged act of discrimination or three years for cases involving gender-based harassment. As under state law, employees can bring a lawsuit in the New York state courts within three years from the last act of discrimination.

Both the NYSDHR and NYCHRC can issue cease and desist orders against the employer and order employee reinstatement, payment of lost wages or emotional distress damages, and civil penalties against the employer.

What Defenses Exist to Harassment and Discrimination Claims?

Defenses to discrimination claims vary depending on the law at issue.  Generally, there is a defense if the employer had a legitimate non-discriminatory motive for the conduct.  For instance, an employee may have been passed over for promotion because others were more qualified.  The best way to prove this defense is to keep careful records on employees, including conducting regular reviews.  In addition, employers should take care to clearly define what criteria is being used to evaluate employees.

Where a seemingly neutral employment policy has a disparate impact on a protected group, the employer has a defense that the policy is job-related and consistent with business necessity.  The employer must show that the policy is “reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances,” including its potential harm to the protected group.

Under some statutes, employers have an obligation to provide a reasonable accommodation to an employee who is adversely impacted by an employment practice, such as with religious or disability discrimination.  In those cases, the employer still has a defense if a proposed accommodation would pose an undue hardship.

Sexual Harassment

Under federal law, employers are generally liable if a supervisor is the harasser, but they have an affirmative defense. Employers are not liable if they can show they acted reasonably to prevent and correct the harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If the harasser was not a supervisor, an employer is only liable if it knew or should have known of the misconduct.

Under New York law, employers have a defense to the extent that the employee must show that the harassment consists of more than “petty slights or trivial inconveniences.”


Employers cannot afford to treat discrimination claims lightly. Best practice is to consult an attorney about establishing appropriate preventative measures. If a complaint arises, experienced legal counsel can help determine the best way to respond.


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