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S08740 Actions:

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S08740 Text:

                STATE OF NEW YORK
                    IN SENATE
                                      May 10, 2018
        Introduced  by  Sen. HOYLMAN -- 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 executive law, in relation to requiring employers to
          annually report to the division of human rights the number of  settle-
          ments  with employees and other individuals performing services in the
          workplace regarding claims of discrimination  on  the  basis  of  sex,
          including  verbal  and physical sexual harassment; providing for legal
          remedies for violations of the reporting  requirement;  requiring  the
          division  of  human rights to provide an annual report to the governor
          and the legislature; and to make conforming technical changes
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Sections  300 and 301 of the executive law are renumbered
     2  sections 308 and 309.
     3    § 2. The executive law is amended by adding a new section 300 to  read
     4  as follows:
     5    §  300.  Reporting  of  workplace  sexual  harassment  claims. 1. Each
     6  employer subject to the provisions of section two hundred ninety-two  of
     7  this  article  shall annually report to the division the total number of
     8  settlements reached  with  employees  and  non-employees  regarding  the
     9  resolution  of  claims  of discrimination on the basis of sex, including
    10  verbal and physical sexual harassment.
    11    2. Settlements required  to  be  reported  under  this  section  shall
    12  include  any  agreement  or  arrangement  where  anything  of  value  is
    13  conferred to the individual raising the claim in return for  such  indi-
    14  vidual declining to further pursue the claim, and any internal mediation
    15  or  other  workplace resolution that results in the individual declining
    16  to further pursue the claim.
    17    3. Claims of discrimination on the basis of sex include, but  are  not
    18  limited to, claims of the following:
    19    (a) inappropriate or unwanted touching;
    20    (b) verbal comments about sex or of a sexual nature, which may include
    21  comments  to  an  individual  about  the  individual's body or sexual or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 8740                             2
     1  romantic activity or the body or sexual  or  romantic  activity  of  the
     2  individual making the comments;
     3    (c)  referring to another individual by a name or nickname of a roman-
     4  tic, demeaning, or sexual nature;
     5    (d) inappropriate gestures of a sexual nature;
     6    (e) unwanted proposals for sexual activity;
     7    (f) showing another individual photos or other images that are sexual-
     8  ly explicit or are otherwise of a sexual nature; and
     9    (g) undue attention to or questions about a person's sexual  relation-
    10  ships, sexual history, sexual orientation, or gender identity.
    11    4.  Reports required to be submitted pursuant to this section shall be
    12  on forms and according to such procedures as the division  shall  estab-
    13  lish.
    14    5.  (a) It shall be an unlawful discriminatory practice for any person
    15  engaged in any activity to which this section applies  to  retaliate  or
    16  discriminate against an individual because the individual has:
    17    (1)  inquired  about  an  employer's compliance with the provisions of
    18  this section;
    19    (2) complained  about  an  employer's  lack  of  compliance  with  the
    20  provisions of this section; or
    21    (3)  reported  an employer's lack of compliance with the provisions of
    22  this section to  the  division  or  to  another  agency,  including  law
    23  enforcement agencies.
    24    (b)  In  addition to civil rights protections and remedies for retali-
    25  ation available under  this  article,  any  employer  who  violates  the
    26  provisions  of  paragraph (a) of this subdivision shall be liable to any
    27  affected employee or non-employee for:
    28    (1) damages equal to the amount of any wages, salary, employment bene-
    29  fits, or other compensation denied to or lost by such employee by reason
    30  of the violation;
    31    (2) the interest on the amount described in subparagraph one  of  this
    32  paragraph  calculated  at  the applicable Internal Revenue Service (IRS)
    33  quarterly interest rates used to compute back pay;
    34    (3) an additional amount as liquidated damages equal to the sum of the
    35  amount described in subparagraph  one  and  the  interest  described  in
    36  subparagraph two of this paragraph; and
    37    (4)  such  equitable  relief  as may be appropriate, including but not
    38  limited to, employment, reinstatement and promotion.
    39    (c) An action to recover the damages or equitable relief prescribed in
    40  paragraph (b) of this subdivision may be maintained against any employer
    41  in any federal or state court of competent jurisdiction by  any  one  or
    42  more employees for and on behalf of:
    43    (1) the affected employee or employees; or
    44    (2)  the  affected employee or employees and other employees similarly
    45  situated.
    46    (d) The court in such an action shall, in  addition  to  any  judgment
    47  awarded  to  the plaintiff, allow reasonable attorneys' fees, reasonable
    48  expert witness fees, and other costs of the action to  be  paid  by  the
    49  defendant.
    50    6.  (a)  Nothing  in this section shall be construed to interfere with
    51  the right of an employee or non-employee to enter into a confidentiality
    52  or non-disclosure agreement with his or her employer with respect  to  a
    53  claim  of discrimination on the basis of sex, including verbal and phys-
    54  ical sexual harassment, the investigation of such a claim, or  the  out-
    55  of-court settlement of such a claim.

        S. 8740                             3
     1    (b) An employer may not use a confidentiality or non-disclosure agree-
     2  ment described in paragraph (a) of this subdivision as a basis for fail-
     3  ing  or  refusing  to submit to the division the information required by
     4  subdivisions one and two of this section.
     5    (c)  A  confidentiality  or  non-disclosure  agreement as described in
     6  paragraph (a) of this subdivision shall not be construed as  prohibiting
     7  any party to such agreement from cooperating with law enforcement inves-
     8  tigations into any claims of discrimination on the basis of sex, includ-
     9  ing verbal and physical sexual harassment.
    10    7. As used in this section:
    11    (a) "employer" includes all employers within the state; and
    12    (b)  "non-employee" means a person other than an employee who provides
    13  services pursuant to a contract or other  agreement  in  the  workplace,
    14  including  but  not  limited  to,  a  vendor, consultant, free-lancer or
    15  employee of a temporary or staffing agency.
    16    § 3. Section 295 of the executive law  is  amended  by  adding  a  new
    17  subdivision 17 to read as follows:
    18    17.  Annually,  on or before April first, the division shall submit to
    19  the governor and to the legislature, and shall  make  available  to  the
    20  public  on  its  website,  a report containing the following information
    21  relating to claims of discrimination on  the  basis  of  sex,  including
    22  verbal and physical sexual harassment:
    23    (a)  the  number  of settlements that were reported to the division as
    24  defined by and reported pursuant to this section;
    25    (b) the number of charges alleging discrimination on the basis of  sex
    26  that  were  reported  to the division, from any source, including verbal
    27  and physical sexual harassment made directly to the division; and
    28    (c) a summary of any action taken by the division based upon any  such
    29  charges  or complaints collected pursuant to this section, such as liti-
    30  gation or settlements facilitated by the division pertaining to discrim-
    31  ination on the basis  of  sex,  including  verbal  and  physical  sexual
    32  harassment,  including  a  brief  description  of  any  outcome  of such
    33  actions.
    34    § 4. This act shall take effect on the first of January next  succeed-
    35  ing the date upon which it shall have become a law. Effective immediate-
    36  ly  the  addition,  amendment  and/or  repeal  of any rule or regulation
    37  necessary for the implementation of this act on its effective  date  are
    38  authorized to be made on or before such date.
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