NYSDHR’s “No Probable Cause” Finding Upheld in Caregiver Discrimination Case

A recent decision, Matter of Floriano-Keetch v New York State Div. of Human Rights, 2019 NY Slip Op 06282 (App. 4th Dept. Aug. 22, 2019), illustrates the procedure following a “no probable cause” determination by the New York State Division of Human Rights (SDHR).

The court explained:

Where, as here, SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis” (Matter of Sullivan v New York State Div. of Human Rights, 160 AD3d 1395, 1396 [4th Dept 2018] [internal quotation marks omitted]; see Matter of McDonald v New York State Div. of Human Rights, 147 AD3d 1482, 1482 [4th Dept 2017]; Matter of Smith v New York State Div. of Human Rights, 142 AD3d 1362, 1363 [4th Dept 2016], lv denied 30 NY3d 913 [2018]). We note initially that, contrary to petitioner’s contention, “the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing” (Matter of Hall v New York State Div. of Human Rights, 137 AD3d 1583, 1584 [2016]; see McDonald, 147 AD3d at 1483). “Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination . . . , and such deference extends to [SDHR’s] decision whether to conduct a hearing . . . [SDHR] has the discretion to determine the method to be used in investigating a claim, and a hearing is not required in all cases”.

Applying the law, the Fourth Department found that the determination of no probable cause was not arbitrary or capricious, and had a rational basis in the record.

“Probable cause exists only when, after giving full credence to the complainant’s version of the events, there is some evidence of unlawful discrimination,” explained the court, and here, there was no evidence of unlawful discrimination.


To the extent that petitioner challenges SDHR’s determination on the basis that she was discriminated against based on her status as a caregiver, her challenge fails as a matter of law. As SDHR correctly determined, caring for an ailing family member is not a protected activity under the Human Rights Law (see Executive Law § 296 [1] [a]-[c]; cf. Administrative Code of City of NY §§ 8-102, 8-107 [1] [a]; see generally Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). In addition, a rational basis supports SDHR’s determination that there was no probable cause to believe that respondent discriminated against petitioner based on a perceived disability in the form of mental illness or addiction. Although respondent twice made inquiries concerning petitioner’s behavior that respondent believed was unusual and on one occasion required her to complete a drug test, SDHR rationally concluded that those facts alone do not establish that respondent perceived that she suffered from an addiction or mental illness (see § 292 [21] [a]; see generally Eustace v South Buffalo Mercy Hosp., 36 Fed Appx 673, 675 [2d Cir 2002]). Moreover, petitioner failed to allege that any adverse action resulted from those events or that she was subjected to “discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the terms or conditions of employment”

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