Receiving a formal discrimination complaint from an employee is one of the most serious situations an employer can face. The allegation alone can trigger significant legal exposure, potential reputational damage, and disruption to workplace operations. Whether the complaint arrives through internal channels or from a government agency, it demands immediate, thoughtful, and legally compliant action.

Discrimination, in legal terms, means treating an employee differently or creating a hostile work environment based on a protected characteristic such as race, color, religion, sex, gender identity, sexual orientation, national origin, age, disability, pregnancy, marital status, or other categories protected under federal, state, and local law. New York City law, in particular, provides some of the most comprehensive protections in the nation. What many employers fail to realize is that discrimination claims can arise not only from overt, intentional conduct but also from seemingly neutral policies that have an unintentional discriminatory effect on protected groups.

This guide will walk you through the critical steps employers must take when confronted with a discrimination complaint, from the first 48 hours through investigation, response, and long-term prevention strategies.

Your First 48 Hours: Critical Immediate Actions

The moment you receive a discrimination complaint, the clock starts ticking. How you respond in the first 48 hours can significantly impact the trajectory of the case and your organization’s legal exposure.

1. Preserve All Evidence: Immediately issue a “litigation hold” directive to prevent the destruction of any potentially relevant documents. This is a legal obligation that applies once you reasonably anticipate litigation. Your litigation hold must cover all forms of communication and documentation, including emails, text messages, Slack or Microsoft Teams messages, personnel files, performance reviews, payroll records, timekeeping records, and all internal communications related to the complainant or the allegations. Failure to preserve evidence can result in severe sanctions, including adverse inferences at trial that destroyed evidence was unfavorable to your case.
2. Do Not Retaliate: This is the most critical point and deserves your immediate attention. Retaliation occurs when an employer takes any adverse action against an employee for filing a complaint, participating in an investigation, or otherwise exercising their legal rights. Retaliatory conduct includes termination, demotion, pay reduction, undesirable shift changes, increased scrutiny or micromanagement, exclusion from meetings or projects, or any other action that could dissuade a reasonable employee from making or supporting a discrimination complaint. Retaliation is illegal under federal, state, and local law, and it often creates a separate legal claim.
3. Maintain Confidentiality: Limit discussion of the complaint to only those individuals with a strict need-to-know basis. This typically includes human resources personnel, legal counsel, the individuals directly involved in the investigation, and senior management who must be informed for decision-making purposes. Confidentiality protects the integrity of your investigation, prevents workplace gossip that can poison the work environment, shields all parties from potential defamation claims, and demonstrates your commitment to handling the matter professionally.
4. Contact Experienced Employment Counsel: Employment law in New York is complex, with overlapping federal, state, and New York City regulations that provide different protections and procedural requirements. An experienced employment attorney can advise you on your specific legal obligations, help you navigate the agency investigation process if applicable, guide your internal investigation to ensure it is thorough and legally defensible, protect attorney-client privilege over your investigation, and develop a comprehensive response strategy. 

Understanding the Process: Who Is Involved and What to Expect

The Agencies: In New York, discrimination complaints can be filed with multiple enforcement agencies, each with distinct jurisdictions and procedures. The primary agencies are:

1. The New York State Division of Human Rights (NYSDHR)
2. The Equal Employment Opportunity Commission (EEOC)
3. The New York City Commission on Human Rights (NYCCHR)

The Stages: The typical progression of an agency investigation unfolds in three primary stages:

Stage 1: The Employer’s Formal Written Response (Position Statement). After an employee files a complaint, the agency serves the employer with a copy and requests a formal written response, commonly called a “Position Statement.” This document is your opportunity to present your side of the story, explain the legitimate, non-discriminatory reasons for any employment actions taken, provide supporting documentation, and identify potential witnesses. The Position Statement is a critical document that sets the tone for the entire investigation and should be prepared carefully with the guidance of experienced employment counsel.

Stage 2: The Agency’s Investigation. Following receipt of the Position Statement, the agency conducts its investigation, which may include issuing Requests for Information (RFIs) demanding additional documents, personnel files, policies, communications, and other evidence; conducting witness interviews with the complainant, managers, supervisors, co-workers, and other relevant parties; and inviting the parties to participate in mediation or conciliation proceedings to attempt voluntary resolution. If the parties reach a settlement agreement during this stage, the agencies have the right to review and approve the terms.

Stage 3: The Potential Outcomes. At the conclusion of its investigation, the agency will issue a determination. If the agency finds no probable cause, the complaint is dismissed, but the employee retains the right to appeal to state court or, in the case of the EEOC, receives a “Notice of Right to Sue” allowing them to file a lawsuit in court within 90 days. If the agency finds probable cause that discrimination occurred, the case proceeds to a public hearing before an administrative law judge. The employer must file a formal answer to the complaint, and the parties are required to attend settlement conferences. If settlement efforts fail, the administrative law judge conducts a hearing and issues a final order, which can include cease-and-desist orders, employee reinstatement, payment of lost wages, emotional distress damages, and civil penalties. These orders can be appealed to state court.

Taking Action: The Internal Investigation and Formal Response

Once the initial crisis management steps are complete, employers must turn their attention to the two most critical substantive tasks: conducting a credible internal investigation and drafting a formal response to the agency.

The Internal Investigation

A legally defensible internal investigation must be prompt, thorough, and impartial. The investigation serves multiple purposes: it demonstrates to agencies and courts that you take discrimination allegations seriously, it helps you uncover the facts and assess your legal exposure, and it provides the evidentiary foundation for your formal response.

Who Should Conduct the Investigation? The investigator must be neutral and free from any conflicts of interest. Consider these options:

• A Trained HR Professional: A qualified internal HR representative with investigation training can conduct the investigation if they have no prior involvement in the underlying events and no reporting relationship to the accused employee.
• Outside Employment Counsel: Retaining an experienced employment attorney to conduct the investigation provides several advantages. It maintains attorney-client privilege over the investigation process and findings, brings specialized legal expertise to identify relevant issues and evidence, and demonstrates independence and objectivity to agencies and courts.
• Third-Party Investigator: In particularly sensitive cases involving senior management, consider engaging an independent third-party investigator with employment law expertise.

Key Investigation Steps: A thorough investigation follows a systematic process:

1. Interview the Complainant
2. Interview the Accused Employee(s)
3. Interview Relevant Witnesses
4. Gather and Review Relevant Documents
5. Create a Detailed Investigation Report 

The Formal Response (Position Statement)

The Position Statement is your single most important opportunity to present your side of the story to the investigating agency. A well-crafted Position Statement, prepared with the guidance of experienced employment counsel, can result in a no-probable-cause finding and case dismissal.

Key Elements of an Effective Position Statement:

• Persuasive Factual Narrative
• Legitimate, Non-Discriminatory Business Reasons
• Supporting Evidence
• Credibility Assessment
• Legal Analysis

Moving Forward: Best Practices for Preventing Future Complaints

While successfully resolving a discrimination complaint is critical, the true measure of an employer’s commitment to a fair workplace lies in what happens next. Every complaint—whether substantiated or not—presents an opportunity to examine your policies, procedures, and workplace culture to identify weaknesses and implement systemic improvements.

The following best practices provide a roadmap for transforming your organization’s approach to discrimination prevention.

1. Review and Update Policies: At the foundation of any discrimination prevention strategy are clear, comprehensive, and accessible written policies. Develop or update anti-discrimination and anti-harassment policies that explicitly prohibit discrimination based on all protected characteristics recognized under federal, state, and local law. Your policies must include a straightforward complaint procedure that provides multiple reporting channels, ensuring employees can report concerns to someone other than their direct supervisor if necessary.
2. Conduct Regular Training: Written policies alone are insufficient; employees must understand what constitutes discrimination and harassment and how to prevent it. Implement mandatory, interactive training for all employees that goes beyond simple policy recitation. Training should provide concrete examples of prohibited conduct, explain the various forms discrimination can take—from overt actions to subtle microaggressions and policies with disparate impact—and emphasize that discrimination and harassment will not be tolerated. In New York, certain employers are required by law to provide annual sexual harassment prevention training—ensure your organization complies with all mandatory training requirements.
3. Promote a Culture of Respect: Policies and training create the framework, but workplace culture determines whether discrimination prevention efforts succeed or fail. Foster a workplace culture where diversity is genuinely valued and all employees feel safe to raise concerns without fear of retaliation. Encourage open communication and create multiple avenues for employees to voice concerns—through direct reporting channels, anonymous hotlines, or regular employee surveys.
4. Ensure Consistency and Documentation: Inconsistent application of policies is one of the most common sources of discrimination claims. Emphasize the critical importance of applying workplace policies, performance management, and disciplinary actions consistently across all employees, regardless of their protected characteristics. 

Conclusion: Turning a Challenge into an Opportunity

Facing an employee discrimination complaint is undeniably challenging, but it does not have to define your organization negatively. There are many ways to navigate these allegations effectively while protecting your legal interests. The employers who emerge strongest from these challenges are those who view them not merely as legal obstacles to overcome, but as catalysts for building better, more compliant, and more equitable workplaces.

If your organization is facing a discrimination complaint or wants to strengthen its discrimination prevention practices, contact us today for a consultation. We will work with you to protect your legal interests, resolve disputes efficiently, and build a workplace culture that minimizes future risk while promoting genuine diversity, equity, and inclusion.

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DISCLAIMER: This blog post is for informational purposes only and does not constitute legal advice. The information provided is general in nature and may not apply to your specific situation. Employment discrimination cases are highly fact-specific, and the laws governing such cases can be complex and subject to change. Nothing in this article creates an attorney-client relationship, and you should not rely on this information as a substitute for professional legal counsel. If you believe you have experienced workplace discrimination, you should consult with a qualified employment attorney who can evaluate the specific facts of your case and provide personalized legal advice based on current law and your individual circumstances.