Settlements After a Probable Cause Determination

Settlements After a Probable Cause Determination

The Division's Policy Regarding Settlements After a Probable Cause Determination

Once a complaint has received a probable cause determination, the parties may only enter into a settlement agreement with the consent of the Division.

If accepted, stipulations of settlement will be made part of a final order of the Division consenting to the termination of the proceeding.  Private settlements between the parties will not be permitted for complaints filed after October 12, 2021.

All settlement agreements must comport with the requirements detailed below.  Failure to adhere to the requirements below will result in the settlement not being approved and the complaint proceeding to a public hearing.

Required Clauses

​​​​​​The following terms must be included in every stipulation of settlement:

a. Both parties agree that they are entering into this stipulation willingly, without any coercion or duress, and that this stipulation, upon approval by the Commissioner, completely resolves and terminates the complaint pending before the Division.

b. Respondent(s) agree to adhere to the Human Rights Law.

c. Both parties agree that this stipulation contains all of the agreed-upon terms and no other promises have been made outside of this stipulation (see section 2d below).

d. Alternatively, if there are other currently pending matters between the parties that the parties wish to settle separately, the following clause may be included instead of the above:

​​​​​​Both parties agree that this stipulation contains all of the agreed-upon terms relating to the claims of unlawful discrimination in violation of the Human Rights Law.  Other matters pending between the parties, not directly related to claims of discrimination in violation of the Human Rights Law, may be addressed in a separate agreement.  Such separate agreement is not a part of this Stipulation.  Such separate agreement does not change, expand or limit any of the terms of this stipulation as it pertains to claims of discrimination in violation of the Human Rights Law.

e. An electronic copy of this Stipulation, transmitted by facsimile, email or other electronic means, shall have the same force and effect as the original.

f. Older Workers’ Benefits Protection Act (OWBPA)

This clause shall be included in employment cases that are dual-filed with the Equal Employment Opportunities Commission under the federal Age Discrimination in Employment Act, and is optional in other employment cases.

The following is the acceptable clause for this purpose:

​​​​​​​By signing this Stipulation of Settlement, Complainant knowingly and voluntarily waives all rights and claims arising under the Age Discrimination in Employment Act of 1967 (ADEA) which Complainant has asserted or could have asserted for events occurring through the date of his or her signing this Stipulation of Settlement.  Pursuant to the ADEA, Complainant has been given twenty-one (21) days from receipt of this Stipulation of Settlement to review and consider it before signing it.  Complainant is advised to consult with an attorney before signing this Stipulation of Settlement.  Complainant may revoke this Stipulation of Settlement within seven (7) days of Complainant signing the Stipulation of Settlement.  Such revocation must be submitted in writing to the Division within the seven (7) days. This Stipulation of Settlement shall not become effective or enforceable prior to the expiration of the seven-day revocation period.



Approved Language for Optional Clauses

a. Non-disparagement

This clause is optional, however, if desired, the only acceptable non-disparagement clause shall be as follows:

The parties agree that neither they nor their representatives will disparage the other party. Disparage as used herein shall mean any communication of false information or the communication of information with reckless disregard to its truth or falsity.

b. Confidentiality

This clause is optional, however, if desired, the acceptable confidentiality clause shall be as follows:

Except as may be required or specifically permitted by law, the parties agree that they shall keep the monetary amount and other terms of this settlement confidential and promise that neither they nor their representatives will disclose, either directly or indirectly, any such information to anyone, including but not limited to past, present, or future employees of the respondent who do not have a need to know about the amount and terms of the settlement, with the exception that disclosure is permitted to a party's immediate family, accountant, attorney, or medical or counseling professional. With regard to the fact of settlement, the parties shall state only that the matter has been resolved. Confidentiality does not extend to disclosure of the underlying facts at issue in the complaint.  It is understood by the Complainant and Respondent that the Division of Human Rights is not, and by law cannot be, bound by the confidentiality provisions of this Stipulation, and that this Stipulation of Settlement, once confirmed by the Commissioner, is a public document.


c. Release of claims

The acceptable release of claims clause is as follows:
The Complainant consents to the termination of the complaint before the Division, {and before the United States Equal Employment Opportunity Commission, EEOC case number 16GB000000,} and releases and discharges the Respondent, [and Respondent’s directors, shareholders, officers, employees, attorneys, and successors and assigns,] from any and all claims arising under local, state or federal statute, regulation, or ordinance relating to {jurisdiction} discrimination, or any other claim related to or arising out of the Complainant's employment by the Respondent, which the Complainant has asserted or could have asserted for events occurring through the date of this agreement.


d. Medicare disclosure clause

The following optional clause may be included.

The complainant agrees to complete a Medicare questionnaire approved by the Division in order to assist the respondent in meeting its mandatory reporting obligation under Section 111 of the federal Medicare, Medicaid and SCHIP Extension Act of 2007.

Prohibited Clauses

The following terms are prohibited in the Stipulation:

a. A complainant’s agreement not to reapply for employment, housing, or entry into an education institution, or to stay away from a public accommodation;

b. Liquidated damages;

c. ​​​​​​​An agreement to sign a separate general release;

d. ​​​​​​​Provisions that prevent the parties from talking about the underlying facts and circumstances of the claim (unless a complainant in an employment-related case prefers nondisclosure.  See N.Y. Gen Oblig. Law § 5-336.  A sample non-disclosure agreement can be requested from the from [email protected]).

e. ​​​​​​​Agreements regarding matters not directly related to the discrimination claims (but see section 1d above).