Bill Text: NY A07083 | 2019-2020 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to increased protections for protected classes, special protections for employees who have been sexually harassed, allowing attorney fees for all protected classes, allowing punitive damages, and eliminates the Faragher/Ellerth defense.

Spectrum: Partisan Bill (Democrat 55-0)

Status: (Introduced - Dead) 2020-01-08 - referred to governmental operations [A07083 Detail]

Download: New_York-2019-A07083-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          7083
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                      April 5, 2019
                                       ___________
        Introduced  by M. of A. SIMOTAS -- read once and referred to the Commit-
          tee on Governmental Operations
        AN ACT to amend the executive law, in relation to increased  protections
          for  protected  classes and special protections for employees who have
          been sexually harassed
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Subdivision  5  of  section  292 of the executive law, as
     2  amended by chapter 363 of the laws of 2015, is amended and a new  subdi-
     3  vision 36 is added to read as follows:
     4    5.  The  term "employer" does not include any employer with fewer than
     5  four [persons] employees or independent contractors in his or her employ
     6  except as set forth in section two hundred ninety-six-b of this article,
     7  provided, however, that in the case  of  an  action  for  discrimination
     8  [based  on sex] pursuant to subdivision one of section two hundred nine-
     9  ty-six of this article, with respect to [sexual] discrimination  harass-
    10  ment  only,  the  term "employer" shall include all employers within the
    11  state.
    12    36. The terms "because of" and "because" in disparate treatment  cases
    13  means the unlawful motive was a motivating factor. Nothing in this defi-
    14  nition  is  intended  to  preclude  or limit use of the disparate impact
    15  method of proving liability.
    16    § 2. Subdivision 1 of section 296 of the executive law is  amended  by
    17  adding two new paragraphs (h) and (i) to read as follows:
    18    (h)  For  an  employer,  licensing agency, employment agency, or labor
    19  organization to subject  any  individual  to  discriminatory  harassment
    20  because  of  the age, race, creed, color, national origin, sexual orien-
    21  tation, gender identity or expression, military status, sex, disability,
    22  predisposing genetic characteristics, familial status,  marital  status,
    23  domestic violence victim status of such individual, or because he or she
    24  has  opposed any practices forbidden under this article or because he or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09983-01-9

        A. 7083                             2
     1  she has filed a complaint, testified or assisted in any proceeding under
     2  this article, regardless of whether  such  harassment  or  hostile  work
     3  environment  is  severe or pervasive. Such discriminatory or retaliatory
     4  harassment  constitutes  an  unlawful discriminatory practice under this
     5  subdivision unless the defendant pleads and proves  that  the  harassing
     6  conduct does not rise above the level of petty slights or trivial incon-
     7  veniences.
     8    (i)  The  aggrieved person's failure to complain about, or utilize any
     9  particular complaint procedure to complain about discriminatory  harass-
    10  ment  or  any other unlawful discriminatory practices under this article
    11  is not a defense, or partial defense, to liability under this article.
    12    § 3. Section 296 of the executive law is amended by  adding  five  new
    13  subdivisions 1-b, 1-c, 1-d, 1-e and 1-f to read as follows:
    14    1-b. An employer, licensing agency, employment agency, or labor organ-
    15  ization  shall  be  liable for an unlawful discriminatory practice based
    16  upon the conduct of an employee or agent which is in violation of subdi-
    17  vision one of this section only where:
    18    (a) The employee or agent exercised managerial or supervisory  respon-
    19  sibility;
    20    (b)  The employer, licensing agency, employment agency or labor organ-
    21  ization knew of the employee's or agent's  discriminatory  conduct,  and
    22  acquiesced  in such conduct or failed to take immediate and/or appropri-
    23  ate corrective action; an employer licensing agency, employment  agency,
    24  or labor organization shall be deemed to have knowledge of an employee's
    25  or agent's discriminatory conduct where that conduct was known by anoth-
    26  er  employee  or agent who exercised managerial or supervisory responsi-
    27  bility; or
    28    (c) The employer, licensing agency, employment agency, or labor organ-
    29  ization should have known of the employee's  or  agent's  discriminatory
    30  conduct  and  failed  to  exercise  reasonable diligence to prevent such
    31  discriminatory conduct.
    32    1-c. An employer, licensing agency, employment agency, or labor organ-
    33  ization shall be liable for an unlawful discriminatory practice  commit-
    34  ted  by an independent contractor, other than an agent of such employer,
    35  employer or engaged to carry out work in furtherance  of  the  employer,
    36  licensing  agency,  employment  agency, or labor organization's business
    37  enterprise only where such discriminatory conduct was committed  in  the
    38  course  of  such  employment  or  engagement and the employer, licensing
    39  agency, employment agency, or labor organization had actual knowledge of
    40  and acquiesced in such conduct.
    41    1-d. Where liability of  an  employer,  licensing  agency,  employment
    42  agency,  or labor organization has been established pursuant to subdivi-
    43  sion one-b of this section, and is based solely on  the  conduct  of  an
    44  employee, agent or independent contractor, the employer shall be permit-
    45  ted  to  plead and prove that with respect to the discriminatory conduct
    46  for which it was found liable it had:
    47    (a) Established and complied with policies,  programs  and  procedures
    48  for the prevention and detection of unlawful discriminatory practices by
    49  employees,  agents  and  persons  employed  as  independent contractors,
    50  including but not limited to:
    51    (i) a meaningful and responsive procedure for investigating complaints
    52  of discriminatory practices by employees, agents and persons employed as
    53  independent contractors and for taking appropriate action against  those
    54  persons who are found to have engaged in such practices;

        A. 7083                             3
     1    (ii)  a firm policy against such practices which is effectively commu-
     2  nicated  to  employees,  agents  and  persons  employed  as  independent
     3  contractors;
     4    (iii) a program to educate employees and agents about unlawful discri-
     5  minatory practices under local, state, and federal law; and
     6    (iv)  procedures  for  the supervision of employees and agents and for
     7  the oversight of persons employed  as  independent  contractors  specif-
     8  ically directed at the prevention and detection of such practices; and
     9    (b)  A record of no, or relatively few, prior incidents of discrimina-
    10  tory conduct by such employee, agent or person employed as an  independ-
    11  ent  contractor  or other employees, agents or persons employed as inde-
    12  pendent contractors.
    13    1-e. The demonstration of any or all of  the  factors  in  subdivision
    14  one-d  of this section, in addition to any other relevant factors, shall
    15  be considered in mitigation of the  amount  of  civil  penalties  to  be
    16  imposed  by  the division of human rights pursuant to this chapter or in
    17  mitigation of civil penalties or punitive damages which may  be  imposed
    18  pursuant  to  this  article and shall be among the factors considered in
    19  determining an employer's liability under paragraph (c)  of  subdivision
    20  one-b of this section.
    21    1-f. An employee or agent of an employer, licensing agency, employment
    22  agency,  or  labor  organization  is  jointly and severally individually
    23  liable with their employer,  licensing  agency,  employment  agency,  or
    24  labor organization for an unlawful discriminatory practice if they exer-
    25  cised managerial or supervisory responsibility for the employer, licens-
    26  ing  agency,  employment  agency,  or labor organization over employees,
    27  agents, or independent contractors of the employer, such that  they  had
    28  authority  to  direct  the  employee, agent, or independent contractor's
    29  work activities or had the power to do more  than  carry  out  personnel
    30  decisions  made  by  others.    Satisfaction of the requirements of this
    31  subdivision is sufficient but not necessary to satisfy the  requirements
    32  of paragraph (a) of subdivision one-b of this section.
    33    §  4. Paragraph (b) of subdivision 2 of section 296-b of the executive
    34  law, as amended by chapter 8 of the laws of 2019, is amended to read  as
    35  follows:
    36    (b)  Subject  a  domestic  worker  to  unwelcome  harassment  based on
    37  [gender,  race,  religion,  sexual  orientation,  gender   identity   or
    38  expression  or  national  origin]  his  or  her age, race, creed, color,
    39  national origin, sexual  orientation,  gender  identity  or  expression,
    40  military  status, sex, disability, predisposing genetic characteristics,
    41  familial status, marital status  or  domestic  violence  victim  status,
    42  where  such  harassment has the purpose or effect of unreasonably inter-
    43  fering with an individual's work performance by creating  an  intimidat-
    44  ing, hostile, or offensive working environment.
    45    §  5.  Section  296-d  of  the executive law, as added by section 1 of
    46  subpart F of part KK of chapter 57 of the laws of 2018,  is  amended  to
    47  read as follows:
    48    §  296-d.  Sexual harassment relating to non-employees. It shall be an
    49  unlawful discriminatory practice  for  an  employer  to  permit  [sexual
    50  harassment]  unlawful  discrimination of non-employees in its workplace.
    51  An employer may be held liable to a non-employee who  is  a  contractor,
    52  subcontractor,  vendor,  consultant  or  other person providing services
    53  pursuant to a contract in the workplace or who is an  employee  of  such
    54  contractor,  subcontractor, vendor, consultant or other person providing
    55  services pursuant to a contract in the workplace, with respect to [sexu-
    56  al harassment] an unlawful discriminatory practice, when  the  employer,

        A. 7083                             4
     1  its  agents  or  supervisors knew or should have known that such non-em-
     2  ployee was subjected to [sexual harassment] an  unlawful  discriminatory
     3  practice  in  the  employer's workplace, and the employer failed to take
     4  immediate  and  appropriate  corrective  action. In reviewing such cases
     5  involving non-employees, the extent of the employer's  control  and  any
     6  other  legal  responsibility which the employer may have with respect to
     7  the conduct of the [harasser] person shall be considered.
     8    § 6. Subdivision 1, paragraph c of subdivision 4  and  subdivisions  9
     9  and  10 of section 297 of the executive law, subdivision 1 and paragraph
    10  c of subdivision 4 as amended by  chapter  166  of  the  laws  of  2000,
    11  subparagraph  (vi) of paragraph c of subdivision 4 as amended by section
    12  1 of part AA of chapter 57 of the laws of 2009, subdivision 9 as amended
    13  by section 16 of part D of chapter 405 of the laws of 1999 and  subdivi-
    14  sion  10  as  amended by chapter 364 of the laws of 2015, are amended to
    15  read as follows:
    16    1. Any person claiming to be aggrieved by an  unlawful  discriminatory
    17  practice may, by himself or herself or his or her attorney-at-law, make,
    18  sign  and  file  with the division a verified complaint in writing which
    19  shall state the name and address of the person alleged to have committed
    20  the unlawful discriminatory practice complained of and which  shall  set
    21  forth  the particulars thereof and contain such other information as may
    22  be required by the division. The commissioner of labor or  the  attorney
    23  general,  or  the  chair  of  the  commission on quality of care for the
    24  mentally disabled, or the division  on  its  own  motion  may,  in  like
    25  manner,  make,  sign  and  file  such  complaint. In connection with the
    26  filing of such complaint, the attorney general  is  authorized  to  take
    27  proof,  issue  subpoenas  and administer oaths in the manner provided in
    28  the civil practice law and rules. Any employer whose employees, or  some
    29  of  them,  refuse or threaten to refuse to cooperate with the provisions
    30  of this article, may file with the division a verified complaint  asking
    31  for assistance by conciliation or other remedial action.
    32    c. Within one hundred eighty days after the commencement of such hear-
    33  ing,  a  determination  shall be made and an order served as hereinafter
    34  provided. If, upon all the evidence at  the  hearing,  the  commissioner
    35  shall  find that a respondent has engaged in any unlawful discriminatory
    36  practice as defined in this article, the commissioner shall state  find-
    37  ings  of  fact and shall issue and cause to be served on such respondent
    38  an order, based on such findings and setting them forth,  and  including
    39  such of the following provisions as in the judgment of the division will
    40  effectuate  the  purposes of this article: (i) requiring such respondent
    41  to cease and desist from such  unlawful  discriminatory  practice;  (ii)
    42  requiring  such  respondent  to  take such affirmative action, including
    43  (but not limited to) hiring, reinstatement or  upgrading  of  employees,
    44  with  or  without  back pay, restoration to membership in any respondent
    45  labor organization, admission to or participation in a guidance program,
    46  apprenticeship training program, on-the-job training  program  or  other
    47  occupational  training  or  retraining  program,  the extension of full,
    48  equal and unsegregated accommodations, advantages, facilities and privi-
    49  leges to all persons, granting the credit which was the subject  of  any
    50  complaint,  evaluating  applicants for membership in a place of accommo-
    51  dation without discrimination based  on  race,  creed,  color,  national
    52  origin,  sex,  disability  or marital status, and without retaliation or
    53  discrimination based on opposition to practices forbidden by this  arti-
    54  cle  or  filing  a  complaint, testifying or assisting in any proceeding
    55  under this article; (iii) awarding of compensatory damages to the person
    56  aggrieved by such practice; (iv) awarding of punitive damages, in  cases

        A. 7083                             5
     1  of  employment  discrimination to the person aggrieved by such practice,
     2  and, in cases of housing discrimination [only], with damages in  housing
     3  discrimination cases in an amount not to exceed ten thousand dollars, to
     4  the  person  aggrieved  by  such  practice; (v) requiring payment to the
     5  state of profits obtained by a  respondent  through  the  commission  of
     6  unlawful discriminatory acts described in subdivision three-b of section
     7  two  hundred  ninety-six of this article; and (vi) assessing civil fines
     8  and penalties, in an amount not to exceed fifty thousand dollars, to  be
     9  paid  to  the  state by a respondent found to have committed an unlawful
    10  discriminatory act, or not to exceed one hundred thousand dollars to  be
    11  paid  to  the  state by a respondent found to have committed an unlawful
    12  discriminatory act which is found to be willful,  wanton  or  malicious;
    13  (vii)  requiring  a report of the manner of compliance. If, upon all the
    14  evidence, the commissioner shall find that a respondent has not  engaged
    15  in  any  such  unlawful  discriminatory  practice, he or she shall state
    16  findings of fact and shall issue and cause to be served on the complain-
    17  ant an order based on such findings and setting  them  forth  dismissing
    18  the said complaint as to such respondent. A copy of each order issued by
    19  the  commissioner shall be delivered in all cases to the attorney gener-
    20  al, the secretary of state, if he or she has issued  a  license  to  the
    21  respondent, and such other public officers as the division deems proper,
    22  and  if  any  such order issued by the commissioner concerns a regulated
    23  creditor, the commissioner shall forward a copy of any such order to the
    24  superintendent. A copy of any complaint filed against any respondent who
    25  has previously entered into a conciliation agreement pursuant  to  para-
    26  graph  a  of subdivision three of this section or as to whom an order of
    27  the division has previously been  entered  pursuant  to  this  paragraph
    28  shall be delivered to the attorney general, to the secretary of state if
    29  he  or  she  has  issued  a  license to the respondent and to such other
    30  public officers as the division deems proper, and if any such respondent
    31  is a regulated creditor, the commissioner shall forward a  copy  of  any
    32  such complaint to the superintendent.
    33    9.  Any  person claiming to be aggrieved by an unlawful discriminatory
    34  practice shall have a cause of action in any court of appropriate juris-
    35  diction for damages, including[,  in  cases  of  housing  discrimination
    36  only,]  punitive damages, and such other remedies as may be appropriate,
    37  including any civil fines and penalties provided in subdivision four  of
    38  this section, unless such person had filed a complaint hereunder or with
    39  any  local commission on human rights, or with the superintendent pursu-
    40  ant to the provisions of section two hundred ninety-six-a of this  chap-
    41  ter,  provided  that, where the division has dismissed such complaint on
    42  the grounds of administrative convenience, on the grounds  of  untimeli-
    43  ness,  or on the grounds that the election of remedies is annulled, such
    44  person shall maintain all rights to bring suit as if  no  complaint  had
    45  been  filed  with  the division. At any time prior to a hearing before a
    46  hearing examiner, a person who has a complaint pending at  the  division
    47  may request that the division dismiss the complaint and annul his or her
    48  election  of  remedies so that the human rights law claim may be pursued
    49  in court, and the division may, upon such request, dismiss the complaint
    50  on the grounds that such person's election of an  administrative  remedy
    51  is annulled. Notwithstanding subdivision (a) of section two hundred four
    52  of  the  civil  practice law and rules, if a complaint is so annulled by
    53  the division, upon the request of  the  party  bringing  such  complaint
    54  before  the  division, such party's rights to bring such cause of action
    55  before a court of appropriate jurisdiction shall be limited by the stat-
    56  ute of limitations in effect in such court at the time the complaint was

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     1  initially filed with the division. Any party to a housing discrimination
     2  complaint shall have the right within twenty days following  a  determi-
     3  nation  of probable cause pursuant to subdivision two of this section to
     4  elect  to  have  an  action  commenced in a civil court, and an attorney
     5  representing the division of human rights will be appointed  to  present
     6  the  complaint  in court, or, with the consent of the division, the case
     7  may be presented by complainant's attorney. A  complaint  filed  by  the
     8  equal  employment opportunity commission to comply with the requirements
     9  of 42 USC 2000e-5(c) and 42 USC 12117(a) and 29  USC  633(b)  shall  not
    10  constitute the filing of a complaint within the meaning of this subdivi-
    11  sion.  No  person  who  has initiated any action in a court of competent
    12  jurisdiction or who has an  action  pending  before  any  administrative
    13  agency under any other law of the state based upon an act which would be
    14  an  unlawful  discriminatory  practice  under  this  article, may file a
    15  complaint with respect to the same grievance under this section or under
    16  section two hundred ninety-six-a of this article.
    17    10. With respect to all cases of housing  discrimination  and  housing
    18  related  credit  discrimination  in an action or proceeding at law under
    19  this section or section two hundred ninety-eight of  this  article,  the
    20  commissioner  or the court may in its discretion award reasonable attor-
    21  ney's fees to any prevailing or substantially prevailing party; and with
    22  respect to a claim of [employment or] credit discrimination where sex is
    23  a basis of such discrimination, and with respect to a claim in all cases
    24  of employment discrimination in an action or  proceeding  at  law  under
    25  this  section  or  section two hundred ninety-eight of this article, the
    26  commissioner or the court [may in its discretion] shall award reasonable
    27  attorney's fees attributable to such  claim  to  any  prevailing  party;
    28  provided, however, that a prevailing respondent or defendant in order to
    29  recover  such  reasonable  attorney's fees must make a motion requesting
    30  such fees and show that the action or proceeding brought was  frivolous;
    31  and  further  provided  that  in a proceeding brought in the division of
    32  human rights, the commissioner may only award attorney's fees as part of
    33  a final order after a public hearing held pursuant to  subdivision  four
    34  of  this  section.  In  no  case shall attorney's fees be awarded to the
    35  division, nor shall the division be liable to a prevailing  or  substan-
    36  tially  prevailing  party for attorney's fees, except in a case in which
    37  the division is a party to the action or the  proceeding  in  the  divi-
    38  sion's capacity as an employer. In cases of employment discrimination, a
    39  respondent  shall only be liable for attorney's fees under this subdivi-
    40  sion if the respondent has been found liable  for  having  committed  an
    41  unlawful  discriminatory  practice.  In  order  to  find  the  action or
    42  proceeding to be frivolous, the court or the commissioner must  find  in
    43  writing one or more of the following:
    44    (a)  the  action or proceeding was commenced, used or continued in bad
    45  faith, solely to delay or prolong the resolution of the litigation or to
    46  harass or maliciously injure another; or
    47    (b) the action or proceeding was commenced or continued in  bad  faith
    48  without  any reasonable basis and could not be supported by a good faith
    49  argument for an extension, modification or reversal of existing law.  If
    50  the  action  or  proceeding  was promptly discontinued when the party or
    51  attorney learned or should have learned that the  action  or  proceeding
    52  lacked such a reasonable basis, the court may find that the party or the
    53  attorney did not act in bad faith.
    54    §  7.  Section  300 of the executive law, as amended by chapter 166 of
    55  the laws of 2000, is amended to read as follows:

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     1    § 300. Construction. The provisions of this article shall be construed
     2  liberally for the accomplishment of the purposes thereof, regardless  of
     3  whether  federal  civil and human rights laws, including those laws with
     4  provisions worded comparably to the provisions  of  this  article,  have
     5  been  so  construed. Exceptions to and exemptions from the provisions of
     6  this article shall be construed narrowly in order to maximize deterrence
     7  of discriminatory conduct. Nothing contained in this  article  shall  be
     8  deemed  to  repeal  any of the provisions of the civil rights law or any
     9  other law of this state relating to  discrimination  [because  of  race,
    10  creed,  color  or national origin]; but, as to acts declared unlawful by
    11  section two hundred ninety-six of this  article,  the  procedure  herein
    12  provided shall, while pending, be exclusive; and the final determination
    13  therein  shall exclude any other action, civil or criminal, based on the
    14  same grievance of the individual concerned. If  such  individual  insti-
    15  tutes any action based on such grievance without resorting to the proce-
    16  dure  provided in this article, he or she may not subsequently resort to
    17  the procedure herein.
    18    § 8. This act shall take effect on the thirtieth day  after  it  shall
    19  have become a law; provided, however that the amendments made to section
    20  296-b  of  the executive law made by section four of this act shall take
    21  effect on the same date and in the same manner as chapter 8 of the  laws
    22  of 2019 takes effect.
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