What’s in a name?

Not a Wendy’s Burger.

To a recent Superior Court decision, everything. But only if you have been represented by counsel. Confused? Let’s backup for a second.

A prerequisite to filing a discrimination claim in state court is that the employee file the same claim before the Commission on Human Rights and Opportunities.  This includes, in most cases, naming all of the parties (or Respondents, in this case) to the claim at the agency level.

But courts have fashioned an exception to this filing rule where a named Respondent and the heretofore unnamed party have an “identity of interests.” Courts have outlined a series of factors to be considered under this “identity of interests” exception.

Here’s where things get interesting, as this recent case demonstrates.

Suppose the employee was represented by counsel at the agency level.  Does that change the rule?

The Superior Court in Harrelle v. Wendy’s Old Fashioned Hamburgers of New York, Inc.,  said yes, the rule is inapplicable in that situation.  It cited another unpublished case, Marks v. Cogswell, from 2011 which stated “Courts have consistently held that this identity of interests exception to the requirement that defendants be named in the preceding CHRO complaint only applies when the plaintiff was not represented by counsel before the CHRO.” Of course, because the case is unpublished, you’ll only find it on specialty legal sites.

In any event, it’s an important, if overlooked, exception to the “identity of interests” exception and employers who are dealing with new parties in a lawsuit ought to invoke it whenever possible.