Bill Text: NY S04109 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to the prevention of discrimination; replaces the term "sexual harassment" with "discrimination".
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S04109 Detail]
Download: New_York-2019-S04109-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4109 2019-2020 Regular Sessions IN SENATE February 28, 2019 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment 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." 20 § 2. Paragraphs 2 and 3 of subdivision (a) of section 7515 of the 21 civil practice law and rules, as added by section 1 of subpart B of part 22 KK of chapter 57 of the laws of 2018, are amended to read as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10167-01-9S. 4109 2 1 2. The term "prohibited clause" shall mean any clause or provision in 2 any contract which requires as a condition of the enforcement of the 3 contract or obtaining remedies under the contract that the parties 4 submit to mandatory arbitration to resolve any allegation or claim of 5 [an unlawful discriminatory practice of sexual harassment] discrimi- 6 nation, in violation of laws prohibiting discrimination, including but 7 not limited to, article fifteen of the executive law. 8 3. The term "mandatory arbitration clause" shall mean a term or 9 provision contained in a written contract which requires the parties to 10 such contract to submit any matter thereafter arising under such 11 contract to arbitration prior to the commencement of any legal action to 12 enforce the provisions of such contract and which also further provides 13 language to the effect that the facts found or determination made by the 14 arbitrator or panel of arbitrators in its application to a party alleg- 15 ing [an unlawful discriminatory practice based on sexual harassment] 16 discrimination, in violation of laws prohibiting discrimination, includ- 17 ing but not limited to, article fifteen of the executive law shall be 18 final and not subject to independent court review. 19 § 3. The section heading and subdivision 2 of section 17-a of the 20 public officers law, as added by section 1 of subpart C of part KK of 21 chapter 57 of the laws of 2018, are amended to read as follows: 22 Reimbursement of funds paid by state agencies and state entities for 23 the payment of awards adjudicated in [sexual harassment] discrimination 24 claims. 25 2. Notwithstanding any law to the contrary, any employee who has been 26 subject to a final judgment of personal liability for intentional wrong- 27 doing related to a claim of [sexual harassment] discrimination, in 28 violation of laws prohibiting discrimination, including but not limited 29 to, article fifteen of the executive law, shall reimburse any state 30 agency or entity that makes a payment to a plaintiff for an adjudicated 31 award based on a claim of [sexual harassment] discrimination, in 32 violation of laws prohibiting discrimination, including but not limited 33 to, article fifteen of the executive law resulting in a judgment, for 34 his or her proportionate share of such judgment. Such employee shall 35 personally reimburse such state agency or entity within ninety days of 36 the state agency or entity's payment of such award. 37 § 4. The section heading and subdivision 2 of section 18-a of the 38 public officers law, as added by section 2 of subpart C of part KK of 39 chapter 57 of the laws of 2018, are amended to read as follows: 40 Reimbursement of funds paid by a public entity for the payment of 41 awards adjudicated in [sexual harassment] discrimination claims. 42 2. Notwithstanding any law to the contrary, any employee who has been 43 subject to a final judgment of personal liability for intentional wrong- 44 doing related to a claim of [sexual harassment] discrimination, in 45 violation of laws prohibiting discrimination, including but not limited 46 to, article fifteen of the executive law, shall reimburse any public 47 entity that makes a payment to a plaintiff for an adjudicated award 48 based on a claim of [sexual harassment] discrimination, in violation of 49 laws prohibiting discrimination, including but not limited to, article 50 fifteen of the executive law resulting in a judgment, for his or her 51 proportionate share of such judgment. Such employee shall personally 52 reimburse such public entity within ninety days of the public entity's 53 payment of such award. 54 § 5. Section 5-336 of the general obligations law, as added by section 55 1 of subpart D of part KK of chapter 57 of the laws of 2018, is amended 56 to read as follows:S. 4109 3 1 § 5-336. Nondisclosure agreements. Notwithstanding any other law to 2 the contrary, no employer, its officers or employees shall have the 3 authority to include or agree to include in any settlement, agreement or 4 other resolution of any claim, the factual foundation for which involves 5 [sexual harassment] discrimination, in violation of laws prohibiting 6 discrimination, including but not limited to, article fifteen of the 7 executive law, any term or condition that would prevent the disclosure 8 of the underlying facts and circumstances to the claim or action unless 9 the condition of confidentiality is the complainant's preference. Any 10 such term or condition must be provided to all parties, and the 11 complainant shall have twenty-one days to consider such term or condi- 12 tion. If after twenty-one days such term or condition is the 13 complainant's preference, such preference shall be memorialized in an 14 agreement signed by all parties. For a period of at least seven days 15 following the execution of such agreement, the complainant may revoke 16 the agreement, and the agreement shall not become effective or be 17 enforceable until such revocation period has expired. 18 § 6. Section 5003-b of the civil practice law and rules, as added by 19 section 2 of subpart D of part KK of chapter 57 of the laws of 2018, is 20 amended to read as follows: 21 § 5003-b. Nondisclosure agreements. Notwithstanding any other law to 22 the contrary, for any claim or cause of action, whether arising under 23 common law, equity, or any provision of law, the factual foundation for 24 which involves [sexual harassment] discrimination, in violation of laws 25 prohibiting discrimination, including but not limited to, article 26 fifteen of the executive law, in resolving, by agreed judgment, stipu- 27 lation, decree, agreement to settle, assurance of discontinuance or 28 otherwise, no employer, its officer or employee shall have the authority 29 to include or agree to include in such resolution any term or condition 30 that would prevent the disclosure of the underlying facts and circum- 31 stances to the claim or action unless the condition of confidentiality 32 is the plaintiff's preference. Any such term or condition must be 33 provided to all parties, and the plaintiff shall have twenty-one days to 34 consider such term or condition. If after twenty-one days such term or 35 condition is the plaintiff's preference, such preference shall be memo- 36 rialized in an agreement signed by all parties. For a period of at least 37 seven days following the execution of such agreement, the plaintiff may 38 revoke the agreement, and the agreement shall not become effective or be 39 enforceable until such revocation period has expired. 40 § 7. Section 201-g of the labor law, as added by section 1 of subpart 41 E of part KK of chapter 57 of the laws of 2018, is amended to read as 42 follows: 43 § 201-g. Prevention of [sexual harassment] discrimination. 1. The 44 department shall consult with the division of human rights to create and 45 publish a model [sexual harassment] discrimination prevention guidance 46 document and [sexual harassment prevention] discrimination prevention 47 policy that employers may utilize in their adoption of [a sexual harass-48ment prevention] the policy required by this section. For purposes of 49 this section, "discrimination" shall mean unlawful discriminatory prac- 50 tice, as defined in section two hundred ninety-six of the executive law 51 and/or discrimination or harassment based on race, color, sex, national 52 origin, creed, sexual orientation, gender identity or expression, age, 53 disability, military status, familial status, marital status, predispos- 54 ing genetic characteristics, or domestic violence victim status. 55 a. Such model [sexual harassment prevention] discrimination prevention 56 policy shall: (i) prohibit [sexual harassment] discrimination consistentS. 4109 4 1 with guidance issued by the department in consultation with the division 2 of human rights and provide examples of prohibited conduct that would 3 constitute unlawful [sexual harassment] discrimination; (ii) include but 4 not be limited to information concerning the federal and state statutory 5 provisions concerning [sexual harassment] discrimination and remedies 6 available to victims of [sexual harassment] discrimination and a state- 7 ment that there may be applicable local laws; (iii) include a standard 8 complaint form; (iv) include a procedure for the timely and confidential 9 investigation of complaints and ensure due process for all parties; (v) 10 inform employees of their rights of redress and all available forums for 11 adjudicating [sexual harassment] discrimination complaints administra- 12 tively and judicially; (vi) clearly state that [sexual harassment] 13 discrimination is considered a form of employee misconduct and that 14 sanctions will be enforced against individuals engaging in [sexual15harassment] discrimination and against supervisory and managerial 16 personnel who knowingly allow such behavior to continue; and (vii) 17 clearly state that retaliation against individuals who complain of 18 [sexual harassment] discrimination or who testify or assist in any 19 proceeding under the law is unlawful. 20 b. Every employer shall adopt the model [sexual harassment] discrimi- 21 nation prevention policy promulgated pursuant to this subdivision or 22 establish a [sexual harassment] discrimination prevention policy to 23 prevent [sexual harassment] discrimination that equals or exceeds the 24 minimum standards provided by such model [sexual harassment prevention] 25 policy. Such [sexual harassment prevention] policy shall be provided to 26 all employees in writing. Such model [sexual harassment prevention] 27 policy shall be publicly available and posted on the websites of both 28 the department and the division of human rights. 29 2. The department shall consult with the division of human rights and 30 produce a model [sexual harassment] discrimination prevention training 31 program to prevent [sexual harassment] discrimination in the workplace. 32 a. Such model [sexual harassment prevention] training program shall be 33 interactive and include: (i) an explanation of [sexual harassment] 34 discrimination consistent with guidance issued by the department in 35 consultation with the division of human rights; (ii) examples of conduct 36 that would constitute unlawful [sexual harassment] discrimination; (iii) 37 information concerning the federal and state statutory provisions 38 concerning [sexual harassment] discrimination and remedies available to 39 victims of [sexual harassment] discrimination; and (iv) information 40 concerning employees' rights of redress and all available forums for 41 adjudicating complaints. 42 b. The department shall include information in such model [sexual43harassment prevention] training program addressing conduct by supervi- 44 sors and any additional responsibilities for such supervisors. 45 c. Every employer shall utilize [the] such model [sexual harassment46prevention] training program pursuant to this subdivision or establish a 47 training program for employees to prevent [sexual harassment] discrimi- 48 nation that equals or exceeds the minimum standards provided by such 49 model training. Such [sexual harassment prevention] training program 50 shall be provided to all employees on an annual basis. 51 3. The commissioner may promulgate regulations as he or she deems 52 necessary for the purposes of carrying out the provisions of this 53 section. 54 § 8. Section 296-d of the executive law, as added by section 1 of 55 subpart F of part KK of chapter 57 of the laws of 2018, is amended to 56 read as follows:S. 4109 5 1 § 296-d. [Sexual harassment] Discrimination relating to non-employees. 2 It shall be an unlawful discriminatory practice for an employer to 3 permit [sexual harassment] discrimination or harassment based on race, 4 color, sex, national origin, creed, sexual orientation, gender identity 5 or expression, age, disability, military status, familial status, mari- 6 tal status, predisposing genetic characteristics, or domestic violence 7 victim status of non-employees in its workplace. An employer may be 8 held liable to a non-employee who is a contractor, subcontractor, 9 vendor, consultant or other person providing services pursuant to a 10 contract in the workplace or who is an employee of such contractor, 11 subcontractor, vendor, consultant or other person providing services 12 pursuant to a contract in the workplace, with respect to [sexual harass-13ment] discrimination or harassment based on race, color, sex, national 14 origin, creed, sexual orientation, gender identity or expression, age, 15 disability, military status, familial status, marital status, predispos- 16 ing genetic characteristics, or domestic violence victim status, when 17 the employer, its agents or supervisors knew or should have known that 18 such non-employee was subjected to [sexual harassment] discrimination or 19 harassment based on race, color, sex, national origin, creed, sexual 20 orientation, gender identity or expression, age, disability, military 21 status, familial status, marital status, predisposing genetic character- 22 istics, or domestic violence victim status in the employer's workplace, 23 and the employer failed to take immediate and appropriate corrective 24 action. In reviewing such cases involving non-employees, the extent of 25 the employer's control and any other legal responsibility which the 26 employer may have with respect to the conduct of the harasser shall be 27 considered. 28 § 9. Subdivision 5 of section 292 of the executive law, as amended by 29 chapter 363 of the laws of 2015, is amended to read as follows: 30 5. The term "employer" [does not include any employer with fewer than31four persons in his or her employ except as set forth in section two32hundred ninety-six-b of this article, provided, however, that in the33case of an action for discrimination based on sex pursuant to subdivi-34sion one of section two hundred ninety-six of this article, with respect35to sexual harassment only, the term "employer"] shall include all 36 employers within the state. 37 § 10. Subdivisions 9 and 10 of section 63 of the executive law, subdi- 38 vision 9 as amended by chapter 359 of the laws of 1969, are amended to 39 read as follows: 40 9. Bring and prosecute or defend upon request of the [industrial] 41 commissioner of labor or the state division of human rights, any civil 42 action or proceeding, the institution or defense of which in his judg- 43 ment is necessary for effective enforcement of the laws of this state 44 against discrimination by reason of age, race, sex, creed, color [or], 45 national origin, sexual orientation, gender identity or expression, 46 military status, disability, predisposing genetic characteristics, fami- 47 lial status, marital status, or domestic violence victim status, or for 48 enforcement of any order or determination of such commissioner or divi- 49 sion made pursuant to such laws. 50 10. Prosecute every person charged with the commission of a criminal 51 offense in violation of any of the laws of this state against discrimi- 52 nation because of age, race, sex, creed, color, [or] national origin, 53 sexual orientation, gender identity or expression, military status, 54 disability, predisposing genetic characteristics, familial status, mari- 55 tal status, or domestic violence victim status, in any case where in his 56 judgment, because of the extent of the offense, such prosecution cannotS. 4109 6 1 be effectively carried on by the district attorney of the county wherein 2 the offense or a portion thereof is alleged to have been committed, or 3 where in his judgment the district attorney has erroneously failed or 4 refused to prosecute. In all such proceedings, the attorney-general may 5 appear in person or by his deputy or assistant before any court or any 6 grand jury and exercise all the powers and perform all the duties in 7 respect of such actions or proceedings which the district attorney would 8 otherwise be authorized or required to exercise or perform. 9 § 11. Severability clause. If any clause, sentence, paragraph, subdi- 10 vision, section or subpart of this act shall be adjudged by any court of 11 competent jurisdiction to be invalid, such judgment shall not affect, 12 impair, or invalidate the remainder thereof, but shall be confined in 13 its operation to the clause, sentence, paragraph, subdivision, section 14 or subject thereof directly involved in the controversy in which such 15 judgment shall have been rendered. It is hereby declared to be the 16 intent of the legislature that this act would have been enacted even if 17 such invalid provisions had not been included herein. 18 § 12. This act shall take effect immediately; provided however: 19 (a) section one of this act shall take effect on the first of January 20 next succeeding the date on which it shall have become a law; 21 (b) sections two, five, and six of this act shall take effect on the 22 ninetieth day after they shall have become a law; and 23 (c) section seven of this act shall take effect on the one hundred 24 eightieth day after it shall have become a law. 25 (d) effective immediately, the addition, amendment and/or repeal of 26 any rule or regulation necessary for the implementation of this act on 27 its effective date are authorized and directed to be made and completed 28 on or before such effective date.