Increases the monetary penalties for the crimes of aggravated harassment in the first or second degrees or for discrimination; provides that the penalty shall be not less than one thousand dollars nor more than ten thousand dollars for the first violation and not less than twenty-five hundred dollars nor more than twelve thousand five hundred dollars for each subsequent violation.
STATE OF NEW YORK
________________________________________________________________________
1886
2009-2010 Regular Sessions
IN ASSEMBLY
January 14, 2009
___________
Introduced by M. of A. JACOBS, DESTITO, GALEF -- Multi-Sponsored by --
M. of A. BENJAMIN, BOYLAND, CANESTRARI, COLTON, DelMONTE, DIAZ, DINOW-
ITZ, FARRELL, GORDON, GREENE, HIKIND, JOHN, LAVINE, McENENY, MILLMAN,
O'DONNELL, PERRY, PHEFFER, J. RIVERA, ROBINSON, SWEENEY, WEISENBERG --
read once and referred to the Committee on Governmental Operations
AN ACT to amend the civil rights law and the executive law, in relation
to increasing the monetary and criminal penalties for aggravated
harassment or discrimination
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 2 of section 40-c of the civil rights law, as
2 amended by chapter 2 of the laws of 2002, is amended to read as follows:
3 2. No person shall, because of race, creed, color, national origin,
4 sex, marital status, sexual orientation or disability, as such term is
5 defined in section two hundred ninety-two of the executive law, be
6 subjected to any discrimination in his or her civil rights, or to any
7 harassment, as defined in section [240.25] 240.26 of the penal law, in
8 the exercise thereof, by any other person or by any firm, corporation or
9 institution, or by the state or any agency or subdivision of the state.
10 § 2. Section 40-d of the civil rights law, as amended by chapter 191
11 of the laws of 1982, is amended to read as follows:
12 § 40-d. Penalty for violation. Any person who shall violate any of the
13 provisions of the foregoing section, or subdivision three of section
14 240.30 or section 240.31 of the penal law, or who shall aid or incite
15 the violation of any of said provisions shall for [each and every] the
16 first violation thereof be liable to a penalty of not less than one
17 [hundred] thousand dollars nor more than [five hundred] ten thousand
18 dollars, and for each subsequent violation thereof be liable to a penal-
19 ty of not less than twenty-five hundred dollars nor more than twelve
20 thousand five hundred dollars, to be recovered by the person aggrieved
21 thereby in any court of competent jurisdiction in the county in which
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04045-01-9
A. 1886 2
1 the defendant shall reside. In addition, any person who shall violate
2 any of the provisions of the foregoing section shall be deemed guilty of
3 a class [A misdemeanor] E felony for the first violation thereof and a
4 class D felony for any subsequent violation thereof. At or before the
5 commencement of any action under this section, notice thereof shall be
6 served upon the attorney general.
7 § 3. Paragraph a of subdivision 3 of section 297 of the executive law,
8 as amended by section 11 of part D of chapter 405 of the laws of 1999,
9 is amended to read as follows:
10 a. If in the judgment of the division the circumstances so warrant, it
11 may, at any time after the filing of the complaint, endeavor to elimi-
12 nate such unlawful discriminatory practice by conference, conciliation
13 and persuasion. Each conciliation agreement shall include provisions
14 requiring the respondent to refrain from the commission of unlawful
15 discriminatory practices in the future and may contain such further
16 provisions as may be agreed upon by the division, the complainant, and
17 the respondent, including payment by the respondent of civil fines and
18 penalties provided in subdivision four of this section and a provision
19 for the entry in the supreme court in any county in the judicial
20 district where the alleged unlawful discriminatory practice was commit-
21 ted, or where any respondent resides or maintains an office for the
22 transaction of business, or where the housing accommodation, land or
23 commercial space specified in the complaint is located, of a consent
24 decree embodying the terms of the conciliation agreement. The division
25 shall not disclose what has transpired in the course of such endeavors.
26 § 4. Paragraph c of subdivision 4 of section 297 of the executive law,
27 as amended by chapter 166 of the laws of 2000, is amended to read as
28 follows:
29 c. Within one hundred eighty days after the commencement of such hear-
30 ing, a determination shall be made and an order served as hereinafter
31 provided. If, upon all the evidence at the hearing, the commissioner
32 shall find that a respondent has engaged in any unlawful discriminatory
33 practice as defined in this article, the commissioner shall state find-
34 ings of fact and shall issue and cause to be served on such respondent
35 an order, based on such findings and setting them forth, and including
36 such of the following provisions as in the judgment of the division will
37 effectuate the purposes of this article: (i) requiring such respondent
38 to cease and desist from such unlawful discriminatory practice; (ii)
39 requiring such respondent to take such affirmative action, including
40 (but not limited to) hiring, reinstatement or upgrading of employees,
41 with or without back pay, restoration to membership in any respondent
42 labor organization, admission to or participation in a guidance program,
43 apprenticeship training program, on-the-job training program or other
44 occupational training or retraining program, the extension of full,
45 equal and unsegregated accommodations, advantages, facilities and privi-
46 leges to all persons, granting the credit which was the subject of any
47 complaint, evaluating applicants for membership in a place of accommo-
48 dation without discrimination based on race, creed, color, national
49 origin, sex, disability or marital status, and without retaliation or
50 discrimination based on opposition to practices forbidden by this arti-
51 cle or filing a complaint, testifying or assisting in any proceeding
52 under this article; (iii) awarding of compensatory damages to the person
53 aggrieved by such practice; (iv) awarding of punitive damages, in cases
54 of housing discrimination only, in an amount not to exceed ten thousand
55 dollars, to the person aggrieved by such practice; (v) requiring payment
56 to the state of profits obtained by a respondent through the commission
A. 1886 3
1 of unlawful discriminatory acts described in subdivision three-b of
2 section two hundred ninety-six of this article; [and] (vi) assessing
3 civil fines and penalties, in cases of housing discrimination only, in
4 an amount not to exceed fifty thousand dollars, to be paid to the state
5 by a respondent found to have committed an unlawful discriminatory act,
6 or not to exceed one hundred thousand dollars to be paid to the state by
7 a respondent found to have committed an unlawful discriminatory act
8 which is found to be willful, wanton or malicious; and (vii) requiring a
9 report of the manner of compliance. If, upon all the evidence, the
10 commissioner shall find that a respondent has not engaged in any such
11 unlawful discriminatory practice, he or she shall state findings of fact
12 and shall issue and cause to be served on the complainant an order based
13 on such findings and setting them forth dismissing the said complaint as
14 to such respondent. A copy of each order issued by the commissioner
15 shall be delivered in all cases to the attorney general, the secretary
16 of state, if he or she has issued a license to the respondent, and such
17 other public officers as the division deems proper, and if any such
18 order issued by the commissioner concerns a regulated creditor, the
19 commissioner shall forward a copy of any such order to the superinten-
20 dent. A copy of any complaint filed against any respondent who has
21 previously entered into a conciliation agreement pursuant to paragraph a
22 of subdivision three of this section or as to whom an order of the divi-
23 sion has previously been entered pursuant to this paragraph shall be
24 delivered to the attorney general, to the secretary of state if he or
25 she has issued a license to the respondent and to such other public
26 officers as the division deems proper, and if any such respondent is a
27 regulated creditor, the commissioner shall forward a copy of any such
28 complaint to the superintendent.
29 § 5. Subdivision 10 of section 297 of the executive law, as added by
30 section 17 of part D of chapter 405 of the laws of 1999, is amended to
31 read as follows:
32 10. [With respect to cases of housing discrimination only, in] In an
33 action or proceeding at law under this section or section two hundred
34 ninety-eight of this article, the commissioner or the court may in its
35 discretion award reasonable attorney's fees to any prevailing or
36 substantially prevailing party; provided, however, that a prevailing
37 respondent or defendant in order to recover such reasonable attorney's
38 fees must make a motion requesting such fees and show that the action or
39 proceeding brought was frivolous; and further provided that in a
40 proceeding brought in the division of human rights, the commissioner may
41 only award attorney's fees as part of a final order after a public hear-
42 ing held pursuant to subdivision four of this section. In no case shall
43 attorney's fees be awarded to the division, nor shall the division be
44 liable to a prevailing or substantially prevailing party for attorney's
45 fees, except in a case in which the division is a party to the action or
46 the proceeding in the division's capacity as an employer. In order to
47 find the action or proceeding to be frivolous, the court or the commis-
48 sioner must find in writing one or more of the following:
49 (a) the action or proceeding was commenced, used or continued in bad
50 faith, solely to delay or prolong the resolution of the litigation or to
51 harass or maliciously injure another; or
52 (b) the action or proceeding was commenced or continued in bad faith
53 without any reasonable basis and could not be supported by a good faith
54 argument for an extension, modification or reversal of existing law. If
55 the action or proceeding was promptly discontinued when the party or
56 attorney learned or should have learned that the action or proceeding
A. 1886 4
1 lacked such a reasonable basis, the court may find that the party or the
2 attorney did not act in bad faith.
3 § 6. The executive law is amended by adding a new section 298-b to
4 read as follows:
5 § 298-b. Civil penalties. 1. Any civil penalty imposed pursuant to
6 subdivision four of section two hundred ninety-seven of this article
7 shall be collected by the division and shall be deposited into the
8 general fund to the credit of the division and shall be used for the
9 ordinary operating expenses of the division.
10 2. Any penalty imposed pursuant to subdivision four or nine of section
11 two hundred ninety-seven of this article shall be separately stated, and
12 shall be in addition to and not reduce or offset any other damages or
13 payment imposed upon a respondent pursuant to such section.
14 § 7. This act shall take effect on the ninetieth day after it shall
15 have become a law.
