November 18, 2025

Which Discrimination Law Should I Choose?

By Laura Trachtman

When a new client approaches me for help with a discrimination matter, the first question I ask is where they, or their employer, is located. I do this for two reasons: One, I need to ensure that I can actually represent the client (for example, I am not barred in Washington, DC, so I cannot help people who live/work there) and two, if I can represent the client, I need to pinpoint which laws are applicable to their specific situation. In general, three laws are available to New York residents: the federal, state, and city statutes. Let’s examine  the pros and cons of each one. 

Title VII

A client can sue under multiple federal statutes: Title VII (discrimination based on race, color, religion, sex, and national origin), the Americans with Disabilities Act (discrimination based on disability), the Age Discrimination in Employment Act (discrimination based on age), and the Equal Pay Act (wage discrimination based on sex). 

Title VII is the most stringent of the anti-discrimination laws in terms of requirements. It  is the only statute of the three which demands a procedural prerequisite: An employee must file a claim with the Equal Employment Opportunity Commission within 180 days of a qualifying event. The EEOC then sends a notice of the charge to the employer. Once the employer responds and the EEOC conducts an investigation, one of three events will occur: If the EEOC is unable to determine whether the law may have been violated, the EEOC will send the employee a Notice of Right to Sue. If the EEOC determines that the law may have been violated, the EEOC will attempt to negotiate a voluntary resolution with the employer. If no resolution can be reached, and the EEOC (or the Department of Justice) determines that they will not bring a case, it will send the employee a Notice of Right to Sue. The last scenario, where the EEOC determines that the law may have been violated and thus they should file suit on the employee’s behalf,  almost never affects private practitioners, obviously, as the feds have taken the case. 

The Notice of Right to Sue is vital in any case where Title VII is asserted. Without a Notice of Right to Sue, the client is prohibited from bringing a cause of action grounded in Title VII, except in two cases: actions brought pursuant to the Age Discrimination in Employment Act and the Equal Pay Act. 

Finally, bringing a lawsuit pursuant to Title VII requires that the discrimination be “severe and pervasive.” This standard makes demonstrating liability extremely difficult. For example, a single act (such as grabbing someone’s private parts) can be severe and pervasive as a matter of law, but in most situations nowadays, it’s almost impossible to demonstrate severe and pervasive discrimination. This is because most bigotry these days is insidious, not blatant: I rarely encounter situations where a boss will slap his secretary on the rear end, or a manager will refer to his Black employee as the N-word. This societal shift makes demonstrating severe and pervasive very challenging. 

Under Title VII, compensatory and punitive damages are capped based on the size of the employer: With 15 to 100 employees, the cap is $50,000; with 101 to 200 employees, the cap is $100,000; with 201 to 500 employees, the cap is $200,000, and with more than 501 employees, the cap is $300,000. Luckily for the employee, this cap does not apply to backpay, frontpay, or interest thereon, so the total recovery is not capped, assuming one has sufficient backpay/frontpay to make a difference, which isn’t always the case if someone is earning minimum wage. 

As a federal agency, the jurisdiction of the EEOC covers  the entire United States, which is its biggest benefit, although most States also boast a State law that mirrors Title VII. A claim under Title VII is a federal question, and thus a lawsuit under Title VII should be brought in the federal courts. The main issue with Title VII right now is that due to President Trump’s January 2025 Executive Orders, the EEOC is not prosecuting cases brought by transgendered individuals. You can see my three previous posts on that EO here, here, and here.

New York State Human Rights Law

The New York State Human Rights Law is codified as Executive Law § 296, and was originally passed in 1945 as the Law Against Discrimination – the first of its kind amongst the states. Like many state statutes, the NYSHRL was eventually patterned upon Title VII, and thus required that the discrimination be severe and pervasive to establish liability. However, former Governor Andrew Cuomo, in an amazing move for a man who later left office due to allegations of sexual harassment, changed the NYSHRL in 2019 to be patterned upon the New York City Human Rights Law (more on that below). With a stroke of the pen, it became easier to demonstrate liability for discrimination; determining whether the discrimination is severe and pervasive is reserved for the assessment of damages. And unlike Title VII, there is no cap on damages. 

The NYSHRL has two other big advantages over Title VII: One, there is no procedural prerequisite to filing a lawsuit in state court. In other words, an employee need not first file a claim with the New York State Division of Human Rights, which is the state division created by the NYSHRL, to be able to sue their employer in court. Two, the NYSHRL created the State Division of Human Rights, which is endowed with the power to eliminate and prevent discrimination. 

In practical terms, this means that if an employee does not want to file a case in the Supreme Court of the State of New York, they can file with the State Division of Human Rights itself, which conducts its own investigation into the allegations. This obviates the need for an employee to hire an attorney to file a complaint on their behalf. At the same time, the Division of Human Rights is cognizant that many people still want an attorney, and this agency will work with the employee’s attorney to complete their investigation into the employee’s allegations. 

As a state agency, the jurisdiction of the Division of Human Rights’ jurisdiction covers  the State of New York. Cases brought under NYSHRL are brought in the state courts. 

New York City Human Rights Law

The third  law applicable to New York City residents is the New York City Human Rights Law, which is codified as Administrative Code § 8-107. This one is my personal favorite.

Originally passed in 1965, NYC’s first Black mayor, David Dinkins, signed a 1991 amendment into law to ensure that the NYCHRL was construed independently from similarly worded provisions of state and federal law. In speaking at the bill signing, Mayor Dinkins stated that the bill gives NYC the most progressive human rights law in the nation and reaffirms New York’s traditional leadership in civil rights. To that end, and to establish liability for discrimination pursuant to the NYCHRL, an employee must only demonstrate that they have been treated differently based on protected characteristics. This is crucial, as most times (as I discussed above) discrimination is insidious and not blatant, and so demonstrating that an employee has been treated differently is significantly easier. 

The NYCHRL created an agency to investigate allegations of discrimination; and no procedural prerequisite is required to file a lawsuit grounded in the NYCHRL in the New York State Supreme Court, and like the post-2019 NYSHRL, the issue of whether the discrimination is severe and pervasive is reserved for damages. Furthermore, there is also no cap on damages. Note that the jurisdiction of the NYCHRL is limited to acts within NYC or tied to NYC, and cases brought under NYCHRL are filed in the state courts. 

In conclusion, while there are three viable statutes which offer relief for claims of  discrimination, it is easiest to prove discrimination under either the NYCHRL or the NYSHRL. An employee can bring causes of action grounded in both city and state statutes in the federal courts alongside a Title VII claim (should the action be filed in the EDNY or SDNY), but should the federal judge dismiss the Title VII cause of action, then the judge will likely remand the case to the state courts for lack of federal jurisdiction. For that reason and others, I prefer to bring cases in the state courts under the NYCHRL and/or the NYSHRL.