Bill Text: NY A02182 | 2023-2024 | General Assembly | Amended

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Bill Title: Permits awarding of reasonable attorneys' fees and costs in court actions for unlawful discriminatory practices pursuant to the human rights law.

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced) 2024-05-02 - print number 2182a [A02182 Detail]

Download: New_York-2023-A02182-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         2182--A

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    January 23, 2023
                                       ___________

        Introduced  by  M.  of A. DINOWITZ, SEAWRIGHT, PAULIN, STECK, SHIMSKY --
          Multi-Sponsored by -- M. of A. SIMON -- read once and referred to  the
          Committee  on  Governmental Operations -- recommitted to the Committee
          on Governmental Operations in accordance with Assembly Rule 3, sec.  2
          --  committee  discharged,  bill amended, ordered reprinted as amended
          and recommitted to said committee

        AN ACT to amend the executive law, in relation  to  awarding  attorneys'
          fees  and  costs  in  an action brought for an unlawful discriminatory
          practice

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Subdivision  9  of  section  297 of the executive law, as
     2  amended by chapter 140 of the laws  of  2022,  is  amended  to  read  as
     3  follows:
     4    9.  Any  person claiming to be aggrieved by an unlawful discriminatory
     5  practice shall have a cause of action in any court of appropriate juris-
     6  diction for damages[, including, in cases of  employment  discrimination
     7  related  to  private employers and housing discrimination only,] and may
     8  award punitive damages, and such other remedies as may  be  appropriate,
     9  including  any civil fines and penalties provided in subdivision four of
    10  this section, unless such person had filed a complaint hereunder or with
    11  any local commission on human rights, or with the superintendent  pursu-
    12  ant  to the provisions of section two hundred ninety-six-a of this arti-
    13  cle, provided that, where the division has dismissed such  complaint  on
    14  the  grounds  of administrative convenience, on the grounds of untimeli-
    15  ness, or on the grounds that the election of remedies is annulled,  such
    16  person  shall  maintain  all rights to bring suit as if no complaint had
    17  been filed with the division. At any time prior to a  hearing  before  a
    18  hearing  examiner,  a person who has a complaint pending at the division
    19  may request that the division dismiss the complaint and  annul  [his  or
    20  her]  such  person's  election  of remedies so that the human rights law

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04983-02-4
        A. 2182--A                          2

     1  claim may be pursued in court, and the division may, upon such  request,
     2  dismiss  the  complaint on the grounds that such person's election of an
     3  administrative remedy is annulled. Notwithstanding  subdivision  (a)  of
     4  section  two  hundred  four  of  the  civil practice law and rules, if a
     5  complaint is so annulled by the division, upon the request of the  party
     6  bringing  such  complaint  before  the  division, such party's rights to
     7  bring such cause of action before a court  of  appropriate  jurisdiction
     8  shall  be  limited by the statute of limitations in effect in such court
     9  at the time the complaint was initially filed  with  the  division.  Any
    10  party  to a housing discrimination complaint shall have the right within
    11  twenty days following a determination  of  probable  cause  pursuant  to
    12  subdivision  two of this section to elect to have an action commenced in
    13  a civil court, and an attorney representing the division of human rights
    14  will be appointed to present  the  complaint  in  court,  or,  with  the
    15  consent  of  the  division,  the  case may be presented by complainant's
    16  attorney. A complaint filed by the equal employment opportunity  commis-
    17  sion  to  comply  with  the requirements of 42 USC 2000e-5(c) and 42 USC
    18  12117(a) and 29  USC  633(b)  shall  not  constitute  the  filing  of  a
    19  complaint  within  the  meaning  of  this subdivision. No person who has
    20  initiated any action in a court of competent jurisdiction or who has  an
    21  action  pending  before any administrative agency under any other law of
    22  the state based upon an act which would be  an  unlawful  discriminatory
    23  practice  under  this  article, may file a complaint with respect to the
    24  same grievance under this section or under section two  hundred  ninety-
    25  six-a of this article. In cases of housing discrimination only, a person
    26  whose  complaint  has been dismissed by the division after investigation
    27  for lack of jurisdiction or lack of probable cause  may  file  the  same
    28  cause  of action in a court of appropriate jurisdiction pursuant to this
    29  section, unless judicial review of such dismissal has been sought pursu-
    30  ant to section two hundred ninety-eight of this  article.  The  attorney
    31  general  shall have the power to commence an action or proceeding in the
    32  supreme court of the state of New York, if, upon information or  belief,
    33  the attorney general is of the opinion that an employer has been, is, or
    34  is  about  to  violate  the provisions regarding unlawful discriminatory
    35  retaliation pursuant to subdivision seven of section two  hundred  nine-
    36  ty-six  of  this article. Nothing in this section shall in any way limit
    37  rights or remedies which are otherwise available under law to the attor-
    38  ney general or any other person authorized to bring an action under this
    39  section.
    40    § 2. Subdivision 10 of section 297 of the executive law, as amended by
    41  chapter 154 of the laws of 2022, is amended to  read as follows:
    42    10. (a) In an action or proceeding  at  law  under  this  section  the
    43  commissioner  or  the  court  shall award reasonable attorneys' fees and
    44  costs in the action to a prevailing party claiming to be aggrieved by an
    45  unlawful discriminatory practice, except that attorneys' fees shall  not
    46  be  awarded  to  the  division,  nor  shall  the division be liable to a
    47  prevailing or substantially prevailing party for attorneys' fees, except
    48  in a case in which the division is a party to the action or the proceed-
    49  ing in the division's capacity as an employer. Expert witness  fees  may
    50  be awarded in the same manner as attorneys' fees.
    51    (b)  In  an  action or proceeding at law under this section or section
    52  two hundred ninety-eight of this article, the commissioner or the  court
    53  may  in  its discretion award reasonable [attorney's] attorneys' fees to
    54  any prevailing [or substantially prevailing party] respondent or defend-
    55  ant; provided, however, that a prevailing  respondent  or  defendant  in
    56  order  to recover such reasonable [attorney's] attorneys' fees must make
        A. 2182--A                          3

     1  a motion requesting such fees and show that  the  action  or  proceeding
     2  brought was frivolous; and further provided that in a proceeding brought
     3  in the division of human rights, the commissioner may only award [attor-
     4  ney's]  attorneys'  fees to a prevailing respondent or defendant as part
     5  of a final order after a public hearing  held  pursuant  to  subdivision
     6  four  of  this  section. [In no case shall attorney's fees be awarded to
     7  the division, nor shall the  division  be  liable  to  a  prevailing  or
     8  substantially  prevailing party for attorney's fees, except in a case in
     9  which the division is a party to the action or  the  proceeding  in  the
    10  division's  capacity as an employer.] Expert witness fees may be awarded
    11  in the same manner as [attorney's] attorneys' fees. [In cases of employ-
    12  ment discrimination, a respondent shall only be  liable  for  attorney's
    13  fees  under this subdivision if the respondent has been found liable for
    14  having committed an unlawful discriminatory practice.] In order to  find
    15  the  action or proceeding to be frivolous, the court or the commissioner
    16  must find in writing one or more of the following:
    17    [(a)] (i) the action or proceeding was commenced, used or continued in
    18  bad faith, solely to delay or prolong the resolution of  the  litigation
    19  or to harass or maliciously injure another; or
    20    [(b)]  (ii) the action or proceeding was commenced or continued in bad
    21  faith without any reasonable basis and could not be supported by a  good
    22  faith  argument  for  an extension, modification or reversal of existing
    23  law. If the action or proceeding  was  promptly  discontinued  when  the
    24  party  or  attorney  learned  or  should have learned that the action or
    25  proceeding lacked such a reasonable basis, the court may find  that  the
    26  party or the attorney did not act in bad faith.
    27    §  3.  This  act shall take effect on the thirtieth day after it shall
    28  have become a law.