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Complainants are often unsuccessful in DHR hearings; should employers still consider settlement?

Writer's picture: Joseph DierJoseph Dier

The NYS Division of Human Rights (DHR) can be quite an inconvenience for employers when investigating complaints, seeking records, or sending a matter to a hearing.  If the worst case scenario occurs and a case proceeds all the way to a hearing, businesses should be happy to know that complainants are much less successful than employers.


The most recent data on this issue published by DHR was for FY 2020-2021 (it is unclear why this data has not been released for subsequent years).  Here are the statistics (only approximate figures are available because DHR used percentages and not raw numbers to report its data):


  1. Of the 3,686 complaints filed, approximately 789 received a probable cause determination (i.e. moved past the investigation phase).

  2. Of those 789 matters, approximately 65 went all the way to a hearing.

  3. Of those 65 hearings, approximately 14 were decided in the complainants’ favor and 51 in the employers’ favor.


Similar data is available for FY 2019-2020


  1. Of the 6,386 complaints filed, approximately 1,003 received a probable cause determination.

  2. Of those 1,003 matters, approximately 110 went all the way to a hearing.

  3. Of those 110 hearings, approximately 26 were decided in the complainants’ favor and 84 in the employers’ favor.


In other words, if a hearing is necessary, complainants do not have much success achieving a positive result.


What these figures omit, however, are the more than 1,300 matters that settled after a probable cause determination during those years.  So the question becomes whether it is worth it to settle when employers are likely to succeed (historically) at the hearing.  The answer is the typical lawyer response: it depends.


The first consideration is at what stage you are in the DHR complaint process.  Unless the facts are truly horrendous, before considering settlement it is usually wise to submit a formal response and see if DHR dismisses the complaint.  Why settle when you can spend less money responding and seeing what happens?  Dier Law’s fee structure makes this even more palatable.


But what if the employer has already received a probable cause determination and is facing a hearing a few years down the road?  This is a much more nuanced situation.


There are several points in favor of settlement.  Employers will avoid a time-consuming hearing, possible bad publicity, and the risk of a damages award and fine.  The business will also avoid having the matter hanging over their head for years.  It is common for hearings not to begin for three or more years after the complaint is filed.  With this delay comes the possibility of a significant interest award (9%) if backpay is awarded.  Settling early on relieves an employer of the uncertainty of wondering how bad the result might be a few years down the road.


Further, many small and medium-sized businesses do not have the luxury of engaging counsel to fight a lengthy legal battle.  Let’s hypothesize about what an employer may face if it receives a probable cause determination and the case is sent to a hearing.  Say that you hire counsel at $300 per hour, significantly less than the current average hourly rate of $413 for New York employment attorneys.  It is not unreasonable to expect that you will be paying that attorney for at least 30-40 hours to take the matter to resolution.  These figures are quite conservative: I have seen attorneys request to be awarded 90 hours of attorneys’ fees at $550/hour in straightforward matters.


At a minimum, you are probably looking at two eight-hour hearing days, a few hours for conferences with DHR, several hours drafting required pre-hearing and post-hearing briefs and submissions, not to mention the actual hearing preparation of gathering and reviewing records, preparing witnesses, and developing and honing a case strategy.  Assuming this amounts to 30-40 hours, and at a rate of $300 per hour, the cost of attorneys’ fees could be $9,000–$12,000.  The exact figure is of course driven by the case’s complexity, but this gives you a rough idea of what to expect.  Using the extreme, but real, example I cited above, you could be looking at almost $50,000 (90 hours x $550/hour).


On the other hand, if an employer can settle early on for $5,000, it may be best for them to swallow their pride and settle considering they’ll pay at least double to their attorneys to represent them further along in the process.  And this is all assuming the employer is successful at the hearing and does not have to pay damages or a fine.


Attorneys and law firms that push employers to go through a full hearing as opposed to settling may be seeking the larger fees associated with the hearing.  Dier Law is different. It will never push an employer towards unnecessary proceedings.  Settlement is sometimes the best option for employers, and I will always propose what is best for the client.


So, is there ever a situation where an employer should go all the way to a hearing?  There are a few.  The first is when a complainant still works for you.  I have seen situations where settling with a current employee can make an employer seem like a cash cow and lead to more complaints, either from the same employee or others.  If the complainant is a former employee, this may not be a concern, especially if the settlement is confidential.


Second, despite an employer’s willingness to settle, the complainant’s demand may simply be too unreasonable.  There is no reason to pay an exorbitant settlement amount simply to avoid a hearing.  Finally, there could be situations where an employer feels the need to be vindicated either for personal or publicity reasons.  For example, if an employer is charged with incredibly serious, but false, allegations, it may be worthwhile to eventually have DHR issue a determination clearing it of wrongdoing.


As noted earlier, however, this is all fact-dependent.  Dier Law can help businesses evaluate each situation independently and determine the best path forward.


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