Peoples-Stokes, Barron, Bichotte, Cook, Crespo, De La Rosa, Galef, O'Donnell, Rozic, Seawright,
Simon, Taylor, Rosenthal L, Hunter, Glick, Arroyo, Ortiz, Niou, Gottfried, Simotas, Wallace, Otis,
Bronson, Weprin, Fall
 
MLTSPNSR
 
Amd §139-l, St Fin L; amd §§7515 & 5003-b, CPLR; amd §§17-a & 18-a, Pub Off L; amd §5-336, Gen Ob L; amd
§201-g, Lab L; amd part KK subpart E §2, Chap 57 of 2018; amd §§296-d, 292 & 63, Exec L
 
Relates to the prevention of discrimination; replaces the term "sexual harassment" with "discrimination".
STATE OF NEW YORK
________________________________________________________________________
S. 1915 A. 1890
2019-2020 Regular Sessions
SENATE - ASSEMBLY
January 17, 2019
___________
IN SENATE -- Introduced by Sen. PARKER -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Finance
IN ASSEMBLY -- 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 -- 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; and to amend
subpart E of part KK of chapter 57 of the laws of 2018, amending the
labor law, relating to the establishment of a model policy regarding
the prevention of sexual harassment and a model training program to
prevent sexual harassment in the workplace, in relation to the effec-
tiveness thereof
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00625-02-9
S. 1915 2 A. 1890
1 party thereto certifies as to its own organization, under penalty of
2 perjury, that the bidder has and has implemented a written policy
3 addressing [sexual harassment] discrimination prevention in the work-
4 place and provides annual [sexual harassment] discrimination prevention
5 training to all of its employees. Such policy shall, at a minimum, meet
6 the requirements of section two hundred one-g of the labor law."
7 § 2. Paragraphs 2 and 3 of subsection (a) of section 7515 of the civil
8 practice law and rules, as added by section 1 of subpart B of part KK of
9 chapter 57 of the laws of 2018, are amended to read as follows:
10 2. The term "prohibited clause" shall mean any clause or provision in
11 any contract which requires as a condition of the enforcement of the
12 contract or obtaining remedies under the contract that the parties
13 submit to mandatory arbitration to resolve any allegation or claim of
14 [an unlawful discriminatory practice of sexual harassment] discrimi-
15 nation, in violation of laws prohibiting discrimination, including but
16 not limited to, article fifteen of the executive law.
17 3. The term "mandatory arbitration clause" shall mean a term or
18 provision contained in a written contract which requires the parties to
19 such contract to submit any matter thereafter arising under such
20 contract to arbitration prior to the commencement of any legal action to
21 enforce the provisions of such contract and which also further provides
22 language to the effect that the facts found or determination made by the
23 arbitrator or panel of arbitrators in its application to a party alleg-
24 ing [an unlawful discriminatory practice based on sexual harassment]
25 discrimination, in violation of laws prohibiting discrimination, includ-
26 ing but not limited to, article fifteen of the executive law shall be
27 final and not subject to independent court review.
28 § 3. The section heading and subdivision 2 of section 17-a of the
29 public officers law, as added by section 1 of subpart C of part KK of
30 chapter 57 of the laws of 2018, are amended to read as follows:
31 Reimbursement of funds paid by state agencies and state entities for
32 the payment of awards adjudicated in [sexual harassment] discrimination
33 claims.
34 2. Notwithstanding any law to the contrary, any employee who has been
35 subject to a final judgment of personal liability for intentional wrong-
36 doing related to a claim of [sexual harassment] discrimination, in
37 violation of laws prohibiting discrimination, including but not limited
38 to, article fifteen of the executive law, shall reimburse any state
39 agency or entity that makes a payment to a plaintiff for an adjudicated
40 award based on a claim of [sexual harassment] discrimination, in
41 violation of laws prohibiting discrimination, including but not limited
42 to, article fifteen of the executive law resulting in a judgment, for
43 his or her proportionate share of such judgment. Such employee shall
44 personally reimburse such state agency or entity within ninety days of
45 the state agency or entity's payment of such award.
46 § 4. The section heading and subdivision 2 of section 18-a of the
47 public officers law, as added by section 2 of subpart C of part KK of
48 chapter 57 of the laws of 2018, are amended to read as follows:
49 Reimbursement of funds paid by a public entity for the payment of
50 awards adjudicated in [sexual harassment] discrimination claims.
51 2. Notwithstanding any law to the contrary, any employee who has been
52 subject to a final judgment of personal liability for intentional wrong-
53 doing related to a claim of [sexual harassment] discrimination, in
54 violation of laws prohibiting discrimination, including but not limited
55 to, article fifteen of the executive law, shall reimburse any public
56 entity that makes a payment to a plaintiff for an adjudicated award
S. 1915 3 A. 1890
1 based on a claim of [sexual harassment] discrimination, in violation of
2 laws prohibiting discrimination, including but not limited to, article
3 fifteen of the executive law resulting in a judgment, for his or her
4 proportionate share of such judgment. Such employee shall personally
5 reimburse such public entity within ninety days of the public entity's
6 payment of such award.
7 § 5. Section 5-336 of the general obligations law, as added by section
8 1 of subpart D of part KK of chapter 57 of the laws of 2018, is amended
9 to read as follows:
10 § 5-336. Nondisclosure agreements. Notwithstanding any other law to
11 the contrary, no employer, its officers or employees shall have the
12 authority to include or agree to include in any settlement, agreement or
13 other resolution of any claim, the factual foundation for which involves
14 [sexual harassment] discrimination, in violation of laws prohibiting
15 discrimination, including but not limited to, article fifteen of the
16 executive law, any term or condition that would prevent the disclosure
17 of the underlying facts and circumstances to the claim or action unless
18 the condition of confidentiality is the complainant's preference. Any
19 such term or condition must be provided to all parties, and the
20 complainant shall have twenty-one days to consider such term or condi-
21 tion. If after twenty-one days such term or condition is the
22 complainant's preference, such preference shall be memorialized in an
23 agreement signed by all parties. For a period of at least seven days
24 following the execution of such agreement, the complainant may revoke
25 the agreement, and the agreement shall not become effective or be
26 enforceable until such revocation period has expired.
27 § 6. Section 5003-b of the civil practice law and rules, as added by
28 section 2 of subpart D of part KK of chapter 57 of the laws of 2018, is
29 amended to read as follows:
30 § 5003-b. Nondisclosure agreements. Notwithstanding any other law to
31 the contrary, for any claim or cause of action, whether arising under
32 common law, equity, or any provision of law, the factual foundation for
33 which involves [sexual harassment] discrimination, in violation of laws
34 prohibiting discrimination, including but not limited to, article
35 fifteen of the executive law, in resolving, by agreed judgment, stipu-
36 lation, decree, agreement to settle, assurance of discontinuance or
37 otherwise, no employer, its officer or employee shall have the authority
38 to include or agree to include in such resolution any term or condition
39 that would prevent the disclosure of the underlying facts and circum-
40 stances to the claim or action unless the condition of confidentiality
41 is the plaintiff's preference. Any such term or condition must be
42 provided to all parties, and the plaintiff shall have twenty-one days to
43 consider such term or condition. If after twenty-one days such term or
44 condition is the plaintiff's preference, such preference shall be memo-
45 rialized in an agreement signed by all parties. For a period of at least
46 seven days following the execution of such agreement, the plaintiff may
47 revoke the agreement, and the agreement shall not become effective or be
48 enforceable until such revocation period has expired.
49 § 7. Section 201-g of the labor law, as added by section 1 of subpart
50 E of part KK of chapter 57 of the laws of 2018, is amended to read as
51 follows:
52 § 201-g. Prevention of [sexual harassment] discrimination. 1. The
53 department shall consult with the division of human rights to create and
54 publish a model [sexual harassment] discrimination prevention guidance
55 document and [sexual harassment prevention] discrimination prevention
56 policy that employers may utilize in their adoption of [a sexual harass-
S. 1915 4 A. 1890
1 ment prevention] the policy required by this section. For purposes of
2 this section, "discrimination" shall mean unlawful discriminatory prac-
3 tice, as defined in section two hundred ninety-six of the executive law
4 and/or discrimination or harassment based on race, color, sex, national
5 origin, creed, sexual orientation, age, disability, military status,
6 familial status, marital status, predisposing genetic characteristics,
7 or domestic violence victim status.
8 a. Such model [sexual harassment prevention] discrimination prevention
9 policy shall: (i) prohibit [sexual harassment] discrimination consistent
10 with guidance issued by the department in consultation with the division
11 of human rights and provide examples of prohibited conduct that would
12 constitute unlawful [sexual harassment] discrimination; (ii) include but
13 not be limited to information concerning the federal and state statutory
14 provisions concerning [sexual harassment] discrimination and remedies
15 available to victims of [sexual harassment] discrimination and a state-
16 ment that there may be applicable local laws; (iii) include a standard
17 complaint form; (iv) include a procedure for the timely and confidential
18 investigation of complaints and ensure due process for all parties; (v)
19 inform employees of their rights of redress and all available forums for
20 adjudicating [sexual harassment] discrimination complaints administra-
21 tively and judicially; (vi) clearly state that [sexual harassment]
22 discrimination is considered a form of employee misconduct and that
23 sanctions will be enforced against individuals engaging in [sexual
24 harassment] discrimination and against supervisory and managerial
25 personnel who knowingly allow such behavior to continue; and (vii)
26 clearly state that retaliation against individuals who complain of
27 [sexual harassment] discrimination or who testify or assist in any
28 proceeding under the law is unlawful.
29 b. Every employer shall adopt the model [sexual harassment] discrimi-
30 nation prevention policy promulgated pursuant to this subdivision or
31 establish a [sexual harassment] discrimination prevention policy to
32 prevent [sexual harassment] discrimination that equals or exceeds the
33 minimum standards provided by such model [sexual harassment prevention]
34 policy. Such [sexual harassment prevention] policy shall be provided to
35 all employees in writing. Such model [sexual harassment prevention]
36 policy shall be publicly available and posted on the websites of both
37 the department and the division of human rights.
38 2. The department shall consult with the division of human rights and
39 produce a model [sexual harassment] discrimination prevention training
40 program to prevent [sexual harassment] discrimination in the workplace.
41 a. Such model [sexual harassment prevention] training program shall be
42 interactive and include: (i) an explanation of [sexual harassment]
43 discrimination consistent with guidance issued by the department in
44 consultation with the division of human rights; (ii) examples of conduct
45 that would constitute unlawful [sexual harassment] discrimination; (iii)
46 information concerning the federal and state statutory provisions
47 concerning [sexual harassment] discrimination and remedies available to
48 victims of [sexual harassment] discrimination; and (iv) information
49 concerning employees' rights of redress and all available forums for
50 adjudicating complaints.
51 b. The department shall include information in such model [sexual
52 harassment prevention] training program addressing conduct by supervi-
53 sors and any additional responsibilities for such supervisors.
54 c. Every employer shall utilize [the] such model [sexual harassment
55 prevention] training program pursuant to this subdivision or establish a
56 training program for employees to prevent [sexual harassment] discrimi-
S. 1915 5 A. 1890
1 nation that equals or exceeds the minimum standards provided by such
2 model training. Such [sexual harassment prevention] training program
3 shall be provided to all employees on an annual basis.
4 3. The commissioner may promulgate regulations as he or she deems
5 necessary for the purposes of carrying out the provisions of this
6 section.
7 § 8. Section 2 of subpart E of part KK of chapter 57 of the laws of
8 2018, amending the labor law, relating to the establishment of a model
9 policy regarding the prevention of sexual harassment and a model train-
10 ing program to prevent sexual harassment in the workplace, is amended to
11 read as follows:
12 § 2. This act shall take effect on the one hundred eightieth day after
13 it shall have become a law. Effective immediately, the department of
14 labor, in consultation with the division of human rights, is authorized
15 to create the model [sexual harassment prevention] policy and the model
16 [sexual harassment prevention] training program required to be created
17 and published pursuant to section 201-g of the labor law as added by
18 section one of this act.
19 § 9. Section 296-d of the executive law, as added by section 1 of
20 subpart F of part KK of chapter 57 of the laws of 2018, is amended to
21 read as follows:
22 § 296-d. [Sexual harassment] Discrimination relating to non-employees.
23 It shall be an unlawful discriminatory practice for an employer to
24 permit [sexual harassment] discrimination or harassment based on race,
25 color, sex, national origin, creed, sexual orientation, age, disability,
26 military status, familial status, marital status, predisposing genetic
27 characteristics, or domestic violence victim status of non-employees in
28 its workplace. An employer may be held liable to a non-employee who is
29 a contractor, subcontractor, vendor, consultant or other person provid-
30 ing services pursuant to a contract in the workplace or who is an
31 employee of such contractor, subcontractor, vendor, consultant or other
32 person providing services pursuant to a contract in the workplace, with
33 respect to [sexual harassment] discrimination or harassment based on
34 race, color, sex, national origin, creed, sexual orientation, age, disa-
35 bility, military status, familial status, marital status, predisposing
36 genetic characteristics, or domestic violence victim status, when the
37 employer, its agents or supervisors knew or should have known that such
38 non-employee was subjected to [sexual harassment] discrimination or
39 harassment based on race, color, sex, national origin, creed, sexual
40 orientation, age, disability, military status, familial status, marital
41 status, predisposing genetic characteristics, or domestic violence
42 victim status in the employer's workplace, and the employer failed to
43 take immediate and appropriate corrective action. In reviewing such
44 cases involving non-employees, the extent of the employer's control and
45 any other legal responsibility which the employer may have with respect
46 to the conduct of the harasser shall be considered.
47 § 10. Subdivision 5 of section 292 of the executive law, as amended by
48 chapter 363 of the laws of 2015, is amended to read as follows:
49 5. The term "employer" [does not include any employer with fewer than
50 four persons in his or her employ except as set forth in section two
51 hundred ninety-six-b of this article, provided, however, that in the
52 case of an action for discrimination based on sex pursuant to subdivi-
53 sion one of section two hundred ninety-six of this article, with respect
54 to sexual harassment only, the term "employer"] shall include all
55 employers within the state.
S. 1915 6 A. 1890
1 § 11. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
2 vision 9 as amended by chapter 359 of the laws of 1969, are amended to
3 read as follows:
4 9. Bring and prosecute or defend upon request of the [industrial]
5 commissioner of labor or the state division of human rights, any civil
6 action or proceeding, the institution or defense of which in his judg-
7 ment is necessary for effective enforcement of the laws of this state
8 against discrimination by reason of age, race, sex, creed, color [or],
9 national origin, sexual orientation, military status, disability,
10 predisposing genetic characteristics, familial status, marital status,
11 or domestic violence victim status, or for enforcement of any order or
12 determination of such commissioner or division made pursuant to such
13 laws.
14 10. Prosecute every person charged with the commission of a criminal
15 offense in violation of any of the laws of this state against discrimi-
16 nation because of age, race, sex, creed, color, [or] national origin,
17 sexual orientation, military status, disability, predisposing genetic
18 characteristics, familial status, marital status, or domestic violence
19 victim status, in any case where in his judgment, because of the extent
20 of the offense, such prosecution cannot be effectively carried on by the
21 district attorney of the county wherein the offense or a portion thereof
22 is alleged to have been committed, or where in his judgment the district
23 attorney has erroneously failed or refused to prosecute. In all such
24 proceedings, the attorney-general may appear in person or by his deputy
25 or assistant before any court or any grand jury and exercise all the
26 powers and perform all the duties in respect of such actions or
27 proceedings which the district attorney would otherwise be authorized or
28 required to exercise or perform.
29 § 12. Severability clause. If any clause, sentence, paragraph, subdi-
30 vision, section or subpart of this act shall be adjudged by any court of
31 competent jurisdiction to be invalid, such judgment shall not affect,
32 impair, or invalidate the remainder thereof, but shall be confined in
33 its operation to the clause, sentence, paragraph, subdivision, section
34 or subject thereof directly involved in the controversy in which such
35 judgment shall have been rendered. It is hereby declared to be the
36 intent of the legislature that this act would have been enacted even if
37 such invalid provisions had not been included herein.
38 § 13. This act shall take effect immediately.