Key points
- Under the New York State Human Rights Law, a person may sue in court unless that person has filed a complaint with the Division of Human Rights or with any local commission on human rights.[1]
- The New York City Human Rights Law also gives a right to sue unless the person has filed a complaint with the City Commission or the State Division about the same practice.[2]
- Under the State law, three kinds of Division dismissal restore the right to sue: administrative convenience, untimeliness, and annulment of the election of remedies.[1]
- A no-probable-cause dismissal of an employment complaint is not among the dismissals that either statute lists as preserving the right to sue; each law provides for review of the dismissal.[3][4][5][6]
- An EEOC charge that is referred to the State Division or the City Commission under federal law is not treated as an election.[7]
"Election of remedies" means that choosing one route to enforce a claim gives up another. Under the New York State Human Rights Law (NYSHRL), a person has a right to sue in court unless that person has filed a complaint with the State Division of Human Rights or with any local commission on human rights.[1] The New York City Human Rights Law (NYCHRL) gives a right to sue unless the person has filed a complaint with the NYC Commission on Human Rights or with the State Division about the same practice.[2] The result is that a State or City claim generally goes to the agency or to the court, not both.[8]
Federal law works differently. The EEOC says the federal laws it enforces, except the Equal Pay Act, require a charge before a lawsuit, and under Title VII the lawsuit may be brought within 90 days after the EEOC gives notice. Under federal law the agency step leads to the lawsuit instead of replacing it.[9][10]
What does the statute actually say?
New York State. Executive Law § 297(9) gives the cause of action "unless such person had filed a complaint hereunder or with any local commission on human rights."[1] While a Division proceeding is pending it is exclusive, and its final determination excludes any other State civil action based on the same grievance.[11]
New York City. Administrative Code § 8-502(a) gives the cause of action "unless such person has filed a complaint with the city commission on human rights or with the state division of human rights."[2]
Each statute, in the words just quoted, reaches beyond its own agency.[1][2]
Which filings count as an election, and which do not?
Both statutes speak of a person who has "filed a complaint" with the agency.[1][2]
- An EEOC charge referred to a New York agency does not count. Under the NYSHRL, a complaint filed by the EEOC to comply with the federal deferral requirements of Title VII, the ADA and the ADEA "shall not constitute the filing of a complaint," and the Division's rule adds that it does not call for a dismissal from the Division before the person goes to court.[12] Under the NYCHRL, a complaint filed with a federal agency and then referred to the City Commission or the State Division is not deemed the filing of a complaint.[2][7]
- A State Division "report." The Division's intake begins with a discrimination report, which the Division says is not an official complaint yet; the complaint is officially filed when the person signs and returns the document the Division prepares.[13] This page does not cover how a report that has not yet become a signed complaint is treated under the election rule; that is a question for a lawyer.
- The City Commission's online form. The Commission says that filling out its online report form is not an official complaint.[14]
What are the exceptions under New York State law?
Section 297(9) says that where the Division has dismissed the complaint on one of three grounds, the person keeps all rights to bring suit as if no complaint had been filed.[1] The three grounds are:
- Administrative convenience. Before a hearing, the Division may, in its unreviewable discretion, dismiss a complaint for administrative convenience if it finds that noticing the complaint for hearing would be undesirable.[15] The Division's rules list, among the possible grounds, that the complainant has started or wants to start a case in another forum on the same grievance, where the dismissal would not contravene the election-of-remedies provisions.[16]
- Untimeliness. A dismissal "on the grounds of untimeliness."[1]
- Annulment of the election. At any time before a hearing before a hearing examiner, a person with a complaint pending may ask the Division to dismiss it and annul the election of remedies so the claim can be pursued in court, and the Division "may" grant the request.[1]
An annulment on request comes with a timing rule. The statute says that the person's right to sue "shall be limited by the statute of limitations in effect in such court at the time the complaint was initially filed with the division."[1] This guide quotes that sentence without stating how it is applied to the time the complaint spent at the Division. The guide to tolling and exceptions covers that subject.
What does not restore the right to sue under the NYSHRL: a dismissal of an employment complaint for lack of jurisdiction or lack of probable cause. The statute allows a new court case after that kind of dismissal "in cases of housing discrimination only."[3] For an employment complaint, the route is court review of the dismissal, started within 60 days after service of the order.[3][17]
The Division's rules also let a complainant withdraw a pending complaint in writing before a notice of hearing is served.[18] The statutory list of events that restore the right to sue names three kinds of dismissal by the Division.[1] This page does not say whether a withdrawal has the same effect; that is a question for a lawyer.
What are the exceptions under New York City law?
Under Administrative Code § 8-502(b), a person keeps the right to start a City-law court action as if no complaint had been filed in two situations.[4]
- The City Commission dismissed the complaint under subdivision a, b or c of § 8-113 (administrative convenience, administrative convenience at the complainant's request before the respondent answers, or lack of jurisdiction).[4][5]
- Or the State Division dismissed the complaint under Executive Law § 297(9) either for administrative convenience or because the election of an administrative remedy was annulled.[4]
The Commission's statute gives a complainant two ways to ask for an administrative convenience dismissal. The Commission "shall dismiss" on the complainant's request made before the respondent files an answer, unless it has already investigated or brought the parties into conciliation.[19] It may also dismiss where the complainant asks, 180 days have passed since filing, the complaint has not been actively investigated and the respondent will not be unduly prejudiced.[19]
A dismissal for lack of probable cause is made under subdivision d of § 8-113, which is not among the subdivisions § 8-502(b) names.[5] When the Commission dismisses on that ground, the complainant may apply to the Commission's Chairperson for review within 30 days of service.[6] A person aggrieved by the Chairperson's order affirming a dismissal may seek review in New York State Supreme Court within 30 days after service of the order.[20]
State and City rules side by side
| Question | New York State Human Rights Law | New York City Human Rights Law |
|---|---|---|
| Which filing bars the lawsuit | A complaint filed with the Division or with any local commission on human rights.[1] | A complaint filed with the City Commission or with the State Division about the same practice.[2] |
| Dismissals that restore the right to sue | Administrative convenience, untimeliness, annulment of the election.[1] | Commission dismissals under § 8-113(a), (b) or (c); State Division dismissals for administrative convenience or annulment.[4] |
| Getting out on request | A request for annulment at any time before a hearing before a hearing examiner; the Division may grant it.[1] | The Commission must dismiss on a request made before the respondent answers, unless it has investigated or begun conciliation; after 180 days it may dismiss on request if the complaint has not been actively investigated and the respondent will not be unduly prejudiced.[19] |
| After a no-probable-cause dismissal | Court review within 60 days after service of the order; no new lawsuit in an employment case.[3][17] | Application to the Chairperson for review within 30 days of service of the dismissal; court review within 30 days after service of the Chairperson's order.[6][20] |
| EEOC charge referred to the agency | Not the filing of a complaint.[12] | Not deemed the filing of a complaint.[2] |
| Effect on the time to sue | After a requested annulment, the right to sue is limited by the statute of limitations in effect in the court when the Division complaint was first filed.[1] | The three-year period to sue is tolled while a complaint is pending at the Commission or the Division, but not where an administrative convenience dismissal is due to the complainant's malfeasance, misfeasance or recalcitrance.[21][22] |
Does the rule run the other way?
Yes. Under the NYSHRL, no person who has started an action in court, or who has an action pending before an administrative agency under another State law, based on the same act may file a Division complaint about the same grievance.[23][1] Section 300 adds that a person who sues without first using the Division's procedure may not later resort to it.[23]
Under the NYCHRL, the City Commission has no jurisdiction where the complainant has already started a civil action on the same grievance (unless it was dismissed or withdrawn without prejudice), has a proceeding before another State-law administrative agency on it, or filed with the State Division and a final determination was made.[24][25] The Commission's public page says that a person cannot file with the Commission after filing a discrimination complaint based on the same facts with any other court or agency, including the State Division, the EEOC and any state or federal court; unemployment insurance and workers' compensation claims are not counted.[26]
What people commonly get wrong
- "Try the agency first and sue if it does not work out." Under the State and City laws, the bar attaches when the complaint is filed, and each statute lists the dismissals after which the right to sue is kept.[1][2][4]
- "The rule is the same at both agencies." The lists of dismissals that restore the right to sue differ: the State statute names untimeliness, and the City statute's list for State Division dismissals names only administrative convenience and annulment.[1][4]
What the choice affects
At the Division, an Administrative Law Judge conducts the hearing and the Commissioner issues the final order.[27][28] Attorney's fees at the Division are available only as part of a final order after a public hearing.[29] The four-forum comparison sets the forums side by side, and the master deadlines table lists every period.
For how each route works in practice, see filing with the State Division, the Division's investigation and hearing, the City Commission's complaint process, suing in court and dual filing between the EEOC and the New York agencies.
Common questions
If I file with the Division of Human Rights, can I still sue my employer later?
Generally not on the same New York State Human Rights Law claim. The statute gives a right to sue unless the person has filed a complaint with the Division or a local commission.[1] The right comes back if the Division dismisses the complaint for administrative convenience, for untimeliness, or because the election of remedies is annulled.[1] A no-probable-cause dismissal in an employment case leads to court review of the dismissal, which must be started within 60 days after service of the order, not to a new lawsuit.[3][17]
Does filing an EEOC charge count as choosing the agency route under New York law?
No. The New York State Human Rights Law says a complaint filed by the EEOC to comply with federal deferral requirements is not the filing of a complaint for this purpose.[12] The New York City Human Rights Law says a complaint filed with a federal agency and later referred to the City Commission or the State Division is not deemed the filing of a complaint either.[2]
Can I change my mind after filing with the State Division?
The New York State Human Rights Law allows a request at any time before a hearing before a hearing examiner: the complainant may ask the Division to dismiss the complaint and annul the election of remedies, and the Division may grant it.[1] The statute then limits the right to sue by the statute of limitations in effect in the court when the complaint was first filed with the Division.[1]
If I sue first, can I go to the agency afterward?
Not on the same grievance. Under the New York State Human Rights Law, a person who has started a court action may not file a Division complaint about the same grievance.[23] Under the New York City Human Rights Law, the City Commission has no jurisdiction where the person has already started a civil action on the same grievance, unless that action was dismissed or withdrawn without prejudice.[24]
Does filing with the State Division also block a claim under the City law?
The New York City Human Rights Law says so: its right to sue exists unless the person has filed a complaint with the City Commission or with the State Division about the same practice.[2] The New York State Human Rights Law likewise bars its court action when a complaint was filed with the Division or with any local commission on human rights.[1]
Sources
- N.Y. Exec. Law § 297(9) — New York State Senate, Laws of New York
- N.Y.C. Admin. Code § 8-502(a). — New York City Commission on Human Rights
- N.Y. Exec. Law §§ 297(9), 298 — New York State Senate, Laws of New York
- N.Y.C. Admin. Code § 8-502(b). — New York City Commission on Human Rights
- N.Y.C. Admin. Code §§ 8-113(a)-(d), 8-502(b) — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-113(d), (f); 47 RCNY § 1-42. — New York City Commission on Human Rights
- N.Y. Exec. Law § 297(9); N.Y.C. Admin. Code § 8-502(a) — New York State Senate, Laws of New York
- N.Y. Exec. Law § 297(9); N.Y.C. Admin. Code § 8-502(a)-(b) — New York State Senate, Laws of New York
- EEOC, "EEOC Public Portal" (page read Oct. 5, 2026) — U.S. Equal Employment Opportunity Commission
- 42 U.S.C. § 2000e-5(f)(1) — Legal Information Institute, Cornell Law School
- N.Y. Exec. Law § 300 — New York State Senate, Laws of New York
- N.Y. Exec. Law § 297(9); 9 NYCRR § 465.5(b) — New York State Senate, Laws of New York
- N.Y.S. Division of Human Rights, "Report Discrimination" and "What To Expect" — New York State Division of Human Rights
- NYC Commission on Human Rights, "Contact Us"; "Report Discrimination" (pages read Oct. 5, 2026) — New York City Commission on Human Rights
- N.Y. Exec. Law § 297(3)(c); 9 NYCRR § 465.5(e)(1)–(2) — New York State Senate, Laws of New York
- 9 NYCRR § 465.5(e)(1), (2)(vi) — Legal Information Institute, Cornell Law School
- N.Y. Exec. Law § 298 — New York State Senate, Laws of New York
- 9 NYCRR § 465.5(a), (c)(1) — Legal Information Institute, Cornell Law School
- N.Y.C. Admin. Code § 8-113(a)(6), (b). — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-123(a), (e), (h). — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-502(d). — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-502(e). — New York City Commission on Human Rights
- N.Y. Exec. Law §§ 297(9), 300 — New York State Senate, Laws of New York
- N.Y.C. Admin. Code § 8-109(f). — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-109(f)(ii), (iii) — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-109(f); NYC Commission on Human Rights, "Complaint Process" (page read Oct. 5, 2026) — New York City Commission on Human Rights
- N.Y.S. Division of Human Rights, "Public Hearings"; N.Y. Exec. Law § 297(4)(a) — New York State Division of Human Rights
- N.Y.S. Division of Human Rights, "Public Hearings" — New York State Division of Human Rights
- N.Y. Exec. Law § 297(10) — New York State Senate, Laws of New York