N.Y. Comp. Codes R. & Regs. tit. 9 § 465.7

Current through Register Vol. 46, No. 15, April 10, 2024

Section 465.7 - Conciliation

(a) Endeavors.

(1) The division, may, at any time after the filing of the complaint, endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.

(2) A conciliation proceeding, to be attended by the parties, should be convened in all appropriate cases by the division, prior to a determination after investigation, in an attempt to resolve the parties' differences. Reasonable adjournments of such conciliation proceeding may be given at the discretion of the investigator or the regional director. Failure of a party to attend the proceeding or cooperate with the investigator may result in a determination based on the material already in the record, with the party who absented him or herself for insufficient reasons barred from submitting additional evidence prior to the determination of cause or no cause.

(3) Offers of conciliation by respondent shall be reviewed by the regional director to determine whether such conciliation offer is substantial enough to require a determination, in the public interest, to terminate the proceeding, on notice to complainant, if the complainant unreasonably refuses to accept the conciliation. The following criteria are among those which should be considered:

(i) probability of success after full investigation;

(ii) reasonableness of offer;

(iii) reasonableness of complainant's refusal, if any;

(iv) the amount of the complainant's economic loss and respondent's degree of responsibility therefor;

(v) in appropriate cases, the evidence of the amount of complainant's mental pain and suffering;

(vi) the egregiousness of the discrimination charged; and

(vii) whether the public interest is best served by the continuation of the proceedings.

(4) Objections by a complainant to a proposed conciliation agreement must be written and shall be delivered or mailed within 15 days of the service of the proposed agreement by the division upon complainant, or earlier, i.e., if made in the context of a conciliation proceeding where both parties or their representatives are present. If the agreement was served by mail, the time for objections shall be extended by five days. The objections shall be specific and in detail.

(5) Where the regional director finds the terms of the proposed conciliation agreement to be in the public interest, and that the complainant's objections to the proposed conciliation agreement are without substance, he or she may:

(i) dismiss the complaint for administrative convenience;

(ii) take other appropriate action pursuant to section 297.3(c) of the law; or

(iii) upon request of respondent, issue an recommended equitable order, for consideration by the commissioner, providing that the respondent will pay the complainant the amount proposed in the conciliation agreement and dismissing the complaint on the merits.

(6) A special conciliation calendar shall be maintained to schedule all pre-determination conciliations.

(7) Notice of conciliation hearings shall be accompanied by a statement advising complainant of a possible waiting period before the case is heard by an administrative law judge, based upon then current division statistics, updated every six months.

(b) Terms. The terms of a conciliation agreement shall include provisions requiring the respondent to refrain from the commission of unlawful discriminatory practices in the future, and may contain such further provisions as may be agreed upon by the regional director and the respondent.

(c) Nondisclosure. The division shall not disclose what has transpired in the course of its endeavors at conciliation and persuasion, except to the parties and their representatives.

(d) Successful conciliation.

(1) If the respondent agrees to the terms of conciliation, as prepared by the regional director, then the regional director shall serve them upon the complainant.

(2) If the complainant agrees to the terms of the agreement, or fails to object to such terms within 15 days after its service, the division may formally enter into the proposed conciliation agreement by issuing an order embodying such conciliation agreement. The division shall serve a copy of such order upon all parties to the proceeding.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 465.7