Bill Text: NY A05976 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to the prevention of discrimination; replaces the term "sexual harassment" with "discrimination".

Spectrum: Partisan Bill (Democrat 33-0)

Status: (Engrossed) 2019-02-27 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [A05976 Detail]

Download: New_York-2019-A05976-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5976
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 22, 2019
                                       ___________
        Introduced  by  M. of A. WRIGHT, PEOPLES-STOKES, BARRON, BICHOTTE, COOK,
          CRESPO, DE LA ROSA, GALEF, O'DONNELL, ROZIC, SEAWRIGHT, SIMON, TAYLOR,
          L. ROSENTHAL, HUNTER, GLICK, ARROYO, ORTIZ, NIOU, GOTTFRIED,  SIMOTAS,
          WALLACE,  OTIS, BRONSON, WEPRIN, FALL -- read once and referred to the
          Committee on Governmental Operations
        AN ACT to amend the state finance law, the civil practice law and rules,
          the public officers law, the general obligations law,  the  labor  law
          and the executive law, in relation to discrimination
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The section heading and paragraph (a) of subdivision  1  of
     2  section 139-l of the state finance law, as added by section 1 of subpart
     3  A  of  part KK of chapter 57 of the laws of 2018, are amended to read as
     4  follows:
     5    Statement on [sexual harassment] discrimination, in bids.
     6    (a) Every bid hereafter made to the state or any public department  or
     7  agency  thereof,  where competitive bidding is required by statute, rule
     8  or regulation, for work or services performed  or  to  be  performed  or
     9  goods  sold  or  to  be  sold,  shall  contain  the  following statement
    10  subscribed by the bidder and affirmed by such bidder as true  under  the
    11  penalty of perjury:
    12    "By  submission  of  this  bid, each bidder and each person signing on
    13  behalf of any bidder certifies, and in the case  of  a  joint  bid  each
    14  party  thereto  certifies  as  to its own organization, under penalty of
    15  perjury, that the bidder  has  and  has  implemented  a  written  policy
    16  addressing  [sexual  harassment]  discrimination prevention in the work-
    17  place and provides annual [sexual harassment] discrimination  prevention
    18  training  to all of its employees. Such policy shall, at a minimum, meet
    19  the requirements of section two hundred one-g of the labor law."
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10167-01-9

        A. 5976                             2
     1    § 2. Paragraphs 2 and 3 of subdivision (a)  of  section  7515  of  the
     2  civil practice law and rules, as added by section 1 of subpart B of part
     3  KK of chapter 57 of the laws of 2018, are amended to read as follows:
     4    2.  The term "prohibited clause" shall mean any clause or provision in
     5  any contract which requires as a condition of  the  enforcement  of  the
     6  contract  or  obtaining  remedies  under  the  contract that the parties
     7  submit to mandatory arbitration to resolve any allegation  or  claim  of
     8  [an  unlawful  discriminatory  practice  of sexual harassment] discrimi-
     9  nation, in violation of laws prohibiting discrimination,  including  but
    10  not limited to, article fifteen of the executive law.
    11    3.  The  term  "mandatory  arbitration  clause"  shall  mean a term or
    12  provision contained in a written contract which requires the parties  to
    13  such  contract  to  submit  any  matter  thereafter  arising  under such
    14  contract to arbitration prior to the commencement of any legal action to
    15  enforce the provisions of such contract and which also further  provides
    16  language to the effect that the facts found or determination made by the
    17  arbitrator  or panel of arbitrators in its application to a party alleg-
    18  ing [an unlawful discriminatory practice  based  on  sexual  harassment]
    19  discrimination, in violation of laws prohibiting discrimination, includ-
    20  ing  but  not  limited to, article fifteen of the executive law shall be
    21  final and not subject to independent court review.
    22    § 3. The section heading and subdivision 2  of  section  17-a  of  the
    23  public  officers  law,  as added by section 1 of subpart C of part KK of
    24  chapter 57 of the laws of 2018, are amended to read as follows:
    25    Reimbursement of funds paid by state agencies and state  entities  for
    26  the  payment of awards adjudicated in [sexual harassment] discrimination
    27  claims.
    28    2. Notwithstanding any law to the contrary, any employee who has  been
    29  subject to a final judgment of personal liability for intentional wrong-
    30  doing  related  to  a  claim  of  [sexual harassment] discrimination, in
    31  violation of laws prohibiting discrimination, including but not  limited
    32  to,  article  fifteen  of  the  executive law, shall reimburse any state
    33  agency or entity that makes a payment to a plaintiff for an  adjudicated
    34  award  based  on  a  claim  of  [sexual  harassment]  discrimination, in
    35  violation of laws prohibiting discrimination, including but not  limited
    36  to,  article  fifteen  of the executive law resulting in a judgment, for
    37  his or her proportionate share of such  judgment.  Such  employee  shall
    38  personally  reimburse  such state agency or entity within ninety days of
    39  the state agency or entity's payment of such award.
    40    § 4. The section heading and subdivision 2  of  section  18-a  of  the
    41  public  officers  law,  as added by section 2 of subpart C of part KK of
    42  chapter 57 of the laws of 2018, are amended to read as follows:
    43    Reimbursement of funds paid by a public  entity  for  the  payment  of
    44  awards adjudicated in [sexual harassment] discrimination claims.
    45    2.  Notwithstanding any law to the contrary, any employee who has been
    46  subject to a final judgment of personal liability for intentional wrong-
    47  doing related to a  claim  of  [sexual  harassment]  discrimination,  in
    48  violation  of laws prohibiting discrimination, including but not limited
    49  to, article fifteen of the executive law,  shall  reimburse  any  public
    50  entity  that  makes  a  payment  to a plaintiff for an adjudicated award
    51  based on a claim of [sexual harassment] discrimination, in violation  of
    52  laws  prohibiting  discrimination, including but not limited to, article
    53  fifteen of the executive law resulting in a judgment,  for  his  or  her
    54  proportionate  share  of  such  judgment. Such employee shall personally
    55  reimburse such public entity within ninety days of the  public  entity's
    56  payment of such award.

        A. 5976                             3
     1    § 5. Section 5-336 of the general obligations law, as added by section
     2  1  of subpart D of part KK of chapter 57 of the laws of 2018, is amended
     3  to read as follows:
     4    §  5-336.  Nondisclosure  agreements. Notwithstanding any other law to
     5  the contrary, no employer, its officers  or  employees  shall  have  the
     6  authority to include or agree to include in any settlement, agreement or
     7  other resolution of any claim, the factual foundation for which involves
     8  [sexual  harassment]  discrimination,  in  violation of laws prohibiting
     9  discrimination, including but not limited to,  article  fifteen  of  the
    10  executive  law,  any term or condition that would prevent the disclosure
    11  of the underlying facts and circumstances to the claim or action  unless
    12  the  condition  of  confidentiality is the complainant's preference. Any
    13  such term or  condition  must  be  provided  to  all  parties,  and  the
    14  complainant  shall  have twenty-one days to consider such term or condi-
    15  tion.  If  after  twenty-one  days  such  term  or  condition   is   the
    16  complainant's  preference,  such  preference shall be memorialized in an
    17  agreement signed by all parties. For a period of  at  least  seven  days
    18  following  the  execution  of such agreement, the complainant may revoke
    19  the agreement, and the  agreement  shall  not  become  effective  or  be
    20  enforceable until such revocation period has expired.
    21    §  6.  Section 5003-b of the civil practice law and rules, as added by
    22  section 2 of subpart D of part KK of chapter 57 of the laws of 2018,  is
    23  amended to read as follows:
    24    §  5003-b.  Nondisclosure agreements. Notwithstanding any other law to
    25  the contrary, for any claim or cause of action,  whether  arising  under
    26  common  law, equity, or any provision of law, the factual foundation for
    27  which involves [sexual harassment] discrimination, in violation of  laws
    28  prohibiting  discrimination,  including  but  not  limited  to,  article
    29  fifteen of the executive law, in resolving, by agreed  judgment,  stipu-
    30  lation,  decree,  agreement  to  settle,  assurance of discontinuance or
    31  otherwise, no employer, its officer or employee shall have the authority
    32  to include or agree to include in such resolution any term or  condition
    33  that  would  prevent  the disclosure of the underlying facts and circum-
    34  stances to the claim or action unless the condition  of  confidentiality
    35  is  the  plaintiff's  preference.  Any  such  term  or condition must be
    36  provided to all parties, and the plaintiff shall have twenty-one days to
    37  consider such term or condition. If after twenty-one days such  term  or
    38  condition  is the plaintiff's preference, such preference shall be memo-
    39  rialized in an agreement signed by all parties. For a period of at least
    40  seven days following the execution of such agreement, the plaintiff  may
    41  revoke the agreement, and the agreement shall not become effective or be
    42  enforceable until such revocation period has expired.
    43    §  7. Section 201-g of the labor law, as added by section 1 of subpart
    44  E of part KK of chapter 57 of the laws of 2018, is amended  to  read  as
    45  follows:
    46    §  201-g.  Prevention  of  [sexual  harassment] discrimination. 1. The
    47  department shall consult with the division of human rights to create and
    48  publish a model [sexual harassment] discrimination  prevention  guidance
    49  document  and  [sexual  harassment prevention] discrimination prevention
    50  policy that employers may utilize in their adoption of [a sexual harass-
    51  ment prevention] the policy required by this section.  For  purposes  of
    52  this  section, "discrimination" shall mean unlawful discriminatory prac-
    53  tice, as defined in section two hundred ninety-six of the executive  law
    54  and/or  discrimination or harassment based on race, color, sex, national
    55  origin, creed, sexual orientation, gender identity or  expression,  age,

        A. 5976                             4
     1  disability, military status, familial status, marital status, predispos-
     2  ing genetic characteristics, or domestic violence victim status.
     3    a. Such model [sexual harassment prevention] discrimination prevention
     4  policy shall: (i) prohibit [sexual harassment] discrimination consistent
     5  with guidance issued by the department in consultation with the division
     6  of  human  rights  and provide examples of prohibited conduct that would
     7  constitute unlawful [sexual harassment] discrimination; (ii) include but
     8  not be limited to information concerning the federal and state statutory
     9  provisions concerning [sexual harassment]  discrimination  and  remedies
    10  available  to victims of [sexual harassment] discrimination and a state-
    11  ment that there may be applicable local laws; (iii) include  a  standard
    12  complaint form; (iv) include a procedure for the timely and confidential
    13  investigation  of complaints and ensure due process for all parties; (v)
    14  inform employees of their rights of redress and all available forums for
    15  adjudicating [sexual harassment] discrimination  complaints  administra-
    16  tively  and  judicially;  (vi)  clearly  state  that [sexual harassment]
    17  discrimination is considered a form  of  employee  misconduct  and  that
    18  sanctions  will  be  enforced  against  individuals  engaging in [sexual
    19  harassment]  discrimination  and  against  supervisory  and   managerial
    20  personnel  who  knowingly  allow  such  behavior  to continue; and (vii)
    21  clearly state that  retaliation  against  individuals  who  complain  of
    22  [sexual  harassment]  discrimination  or  who  testify  or assist in any
    23  proceeding under the law is unlawful.
    24    b. Every employer shall adopt the model [sexual harassment]  discrimi-
    25  nation  prevention  policy  promulgated  pursuant to this subdivision or
    26  establish a [sexual  harassment]  discrimination  prevention  policy  to
    27  prevent  [sexual  harassment]  discrimination that equals or exceeds the
    28  minimum standards provided by such model [sexual harassment  prevention]
    29  policy.  Such [sexual harassment prevention] policy shall be provided to
    30  all employees in writing.  Such  model  [sexual  harassment  prevention]
    31  policy  shall  be  publicly available and posted on the websites of both
    32  the department and the division of human rights.
    33    2. The department shall consult with the division of human rights  and
    34  produce  a  model [sexual harassment] discrimination prevention training
    35  program to prevent [sexual harassment] discrimination in the workplace.
    36    a. Such model [sexual harassment prevention] training program shall be
    37  interactive and include:   (i) an  explanation  of  [sexual  harassment]
    38  discrimination  consistent  with  guidance  issued  by the department in
    39  consultation with the division of human rights; (ii) examples of conduct
    40  that would constitute unlawful [sexual harassment] discrimination; (iii)
    41  information  concerning  the  federal  and  state  statutory  provisions
    42  concerning  [sexual harassment] discrimination and remedies available to
    43  victims of [sexual  harassment]  discrimination;  and  (iv)  information
    44  concerning  employees'  rights  of  redress and all available forums for
    45  adjudicating complaints.
    46    b. The department shall include  information  in  such  model  [sexual
    47  harassment  prevention]  training program addressing conduct by supervi-
    48  sors and any additional responsibilities for such supervisors.
    49    c. Every employer shall utilize [the] such  model  [sexual  harassment
    50  prevention] training program pursuant to this subdivision or establish a
    51  training  program for employees to prevent [sexual harassment] discrimi-
    52  nation that equals or exceeds the minimum  standards  provided  by  such
    53  model  training.  Such  [sexual  harassment prevention] training program
    54  shall be provided to all employees on an annual basis.

        A. 5976                             5
     1    3. The commissioner may promulgate regulations  as  he  or  she  deems
     2  necessary  for  the  purposes  of  carrying  out  the provisions of this
     3  section.
     4    §  8.  Section  296-d  of  the executive law, as added by section 1 of
     5  subpart F of part KK of chapter 57 of the laws of 2018,  is  amended  to
     6  read as follows:
     7    § 296-d. [Sexual harassment] Discrimination relating to non-employees.
     8  It  shall  be  an  unlawful  discriminatory  practice for an employer to
     9  permit [sexual harassment] discrimination or harassment based  on  race,
    10  color,  sex, national origin, creed, sexual orientation, gender identity
    11  or expression, age, disability, military status, familial status,  mari-
    12  tal  status,  predisposing genetic characteristics, or domestic violence
    13  victim status of non-employees in its workplace.   An  employer  may  be
    14  held  liable  to  a  non-employee  who  is  a contractor, subcontractor,
    15  vendor, consultant or other person  providing  services  pursuant  to  a
    16  contract  in  the  workplace  or  who is an employee of such contractor,
    17  subcontractor, vendor, consultant or  other  person  providing  services
    18  pursuant to a contract in the workplace, with respect to [sexual harass-
    19  ment]  discrimination  or harassment based on race, color, sex, national
    20  origin, creed, sexual orientation, gender identity or  expression,  age,
    21  disability, military status, familial status, marital status, predispos-
    22  ing  genetic  characteristics,  or domestic violence victim status, when
    23  the employer, its agents or supervisors knew or should have  known  that
    24  such non-employee was subjected to [sexual harassment] discrimination or
    25  harassment  based  on  race,  color, sex, national origin, creed, sexual
    26  orientation, gender identity or expression,  age,  disability,  military
    27  status, familial status, marital status, predisposing genetic character-
    28  istics,  or domestic violence victim status in the employer's workplace,
    29  and the employer failed to take  immediate  and  appropriate  corrective
    30  action.  In  reviewing such cases involving non-employees, the extent of
    31  the employer's control and any  other  legal  responsibility  which  the
    32  employer  may  have with respect to the conduct of the harasser shall be
    33  considered.
    34    § 9. Subdivision 5 of section 292 of the executive law, as amended  by
    35  chapter 363 of the laws of 2015, is amended to read as follows:
    36    5.  The term "employer" [does not include any employer with fewer than
    37  four persons in his or her employ except as set  forth  in  section  two
    38  hundred  ninety-six-b  of  this  article, provided, however, that in the
    39  case of an action for discrimination based on sex pursuant  to  subdivi-
    40  sion one of section two hundred ninety-six of this article, with respect
    41  to  sexual  harassment  only,  the  term  "employer"]  shall include all
    42  employers within the state.
    43    § 10. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
    44  vision 9 as amended by chapter 359 of the laws of 1969, are  amended  to
    45  read as follows:
    46    9.  Bring  and  prosecute  or  defend upon request of the [industrial]
    47  commissioner of labor or the state division of human rights,  any  civil
    48  action  or  proceeding, the institution or defense of which in his judg-
    49  ment is necessary for effective enforcement of the laws  of  this  state
    50  against  discrimination  by reason of age, race, sex, creed, color [or],
    51  national origin, sexual  orientation,  gender  identity  or  expression,
    52  military status, disability, predisposing genetic characteristics, fami-
    53  lial  status, marital status, or domestic violence victim status, or for
    54  enforcement of any order or determination of such commissioner or  divi-
    55  sion made pursuant to such laws.

        A. 5976                             6
     1    10.  Prosecute  every person charged with the commission of a criminal
     2  offense in violation of any of the laws of this state against  discrimi-
     3  nation  because  of  age, race, sex, creed, color, [or] national origin,
     4  sexual orientation, gender  identity  or  expression,  military  status,
     5  disability, predisposing genetic characteristics, familial status, mari-
     6  tal status, or domestic violence victim status, in any case where in his
     7  judgment,  because of the extent of the offense, such prosecution cannot
     8  be effectively carried on by the district attorney of the county wherein
     9  the offense or a portion thereof is alleged to have been  committed,  or
    10  where  in  his  judgment the district attorney has erroneously failed or
    11  refused to prosecute. In all such proceedings, the attorney-general  may
    12  appear  in  person or by his deputy or assistant before any court or any
    13  grand jury and exercise all the powers and perform  all  the  duties  in
    14  respect of such actions or proceedings which the district attorney would
    15  otherwise be authorized or required to exercise or perform.
    16    §  11. Severability clause. If any clause, sentence, paragraph, subdi-
    17  vision, section or subpart of this act shall be adjudged by any court of
    18  competent jurisdiction to be invalid, such judgment  shall  not  affect,
    19  impair,  or  invalidate  the remainder thereof, but shall be confined in
    20  its operation to the clause, sentence, paragraph,  subdivision,  section
    21  or  subject  thereof  directly involved in the controversy in which such
    22  judgment shall have been rendered. It  is  hereby  declared  to  be  the
    23  intent  of the legislature that this act would have been enacted even if
    24  such invalid provisions had not been included herein.
    25    § 12. This act shall take effect immediately; provided however:
    26    (a) section one of this act shall take effect on the first of  January
    27  next succeeding the date on which it shall have become a law;
    28    (b)  sections  two, five, and six of this act shall take effect on the
    29  ninetieth day after they shall have become a law; and
    30    (c) section seven of this act shall take effect  on  the  one  hundred
    31  eightieth day after it shall have become a law.
    32    (d)  effective  immediately,  the addition, amendment and/or repeal of
    33  any rule or regulation necessary for the implementation of this  act  on
    34  its  effective date are authorized and directed to be made and completed
    35  on or before such effective date.
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