A07083 Summary:

BILL NOA07083A
 
SAME ASSAME AS S03817-A
 
SPONSORSimotas
 
COSPNSRRozic, De La Rosa, Simon, Quart, Lavine, Mosley, Gottfried, Paulin, Ortiz, Miller MG, Braunstein, O'Donnell, D'Urso, Zebrowski, Weprin, Hevesi, Wright, Cruz, Dinowitz, Epstein, Niou
 
MLTSPNSR
 
Amd 292, 296, 296-b, 296-d, 297 & 300, Exec L
 
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.
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A07083 Actions:

BILL NOA07083A
 
04/05/2019referred to governmental operations
05/06/2019amend and recommit to governmental operations
05/06/2019print number 7083a
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A07083 Committee Votes:

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A07083 Floor Votes:

There are no votes for this bill in this legislative session.
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A07083 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7083--A
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                      April 5, 2019
                                       ___________
 
        Introduced by M. of A. SIMOTAS, ROZIC, DE LA ROSA, SIMON, QUART, LAVINE,
          MOSLEY, GOTTFRIED, PAULIN, ORTIZ, M. G. MILLER, BRAUNSTEIN, O'DONNELL,
          D'URSO,  ZEBROWSKI,  WEPRIN -- read once and referred to the Committee
          on Governmental Operations  --  committee  discharged,  bill  amended,
          ordered reprinted as amended and recommitted to said committee

        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. Subdivisions 5 and 6 of section 292 of the  executive  law,
     2  subdivision 5 as amended by chapter 363 of the laws of 2015 and subdivi-
     3  sion  6 as amended by chapter 481 of the laws of 2010, are amended and a
     4  new subdivision 37 is added to read as follows:
     5    5. The term "employer" [does not include any employer with fewer  than
     6  four  persons  in  his  or her employ except as set forth in section two
     7  hundred ninety-six-b of this article, provided,  however,  that  in  the
     8  case  of  an action for discrimination based on sex pursuant to subdivi-
     9  sion one of section two hundred ninety-six of this article, with respect
    10  to sexual harassment  only,  the  term  "employer"]  shall  include  all
    11  employers within the state, including the state and all political subdi-
    12  visions thereof.
    13    6. The term "employee" in this article does not include any individual
    14  employed  by  his  or  her parents, spouse or child, [or in the domestic
    15  service of any person] except as set forth in section two hundred  nine-
    16  ty-six-b of this [title] article.
    17    37.  The terms "because of" and "because" in disparate treatment cases
    18  means the unlawful motive was a motivating factor. Nothing in this defi-
    19  nition is intended to preclude or limit  use  of  the  disparate  impact
    20  method of proving liability.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09983-02-9

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

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

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

        A. 7083--A                          5
 
     1  complaint,  evaluating  applicants for membership in a place of accommo-
     2  dation without discrimination based  on  race,  creed,  color,  national
     3  origin,  sex,  disability  or marital status, and without retaliation or
     4  discrimination  based on opposition to practices forbidden by this arti-
     5  cle or filing a complaint, testifying or  assisting  in  any  proceeding
     6  under this article; (iii) awarding of compensatory damages to the person
     7  aggrieved  by such practice; (iv) awarding of punitive damages, in cases
     8  of employment discrimination to the person aggrieved by  such  practice,
     9  and,  in cases of housing discrimination [only], with damages in housing
    10  discrimination cases in an amount not to exceed ten thousand dollars, to
    11  the person aggrieved by such practice;  (v)  requiring  payment  to  the
    12  state  of  profits  obtained  by  a respondent through the commission of
    13  unlawful discriminatory acts described in subdivision three-b of section
    14  two hundred ninety-six of this article; and (vi) assessing  civil  fines
    15  and  penalties, in an amount not to exceed fifty thousand dollars, to be
    16  paid to the state by a respondent found to have  committed  an  unlawful
    17  discriminatory  act, or not to exceed one hundred thousand dollars to be
    18  paid to the state by a respondent found to have  committed  an  unlawful
    19  discriminatory  act  which  is found to be willful, wanton or malicious;
    20  (vii) requiring a report of the manner of compliance. If, upon  all  the
    21  evidence,  the commissioner shall find that a respondent has not engaged
    22  in any such unlawful discriminatory practice,  he  or  she  shall  state
    23  findings of fact and shall issue and cause to be served on the complain-
    24  ant  an  order  based on such findings and setting them forth dismissing
    25  the said complaint as to such respondent. A copy of each order issued by
    26  the commissioner shall be delivered in all cases to the attorney  gener-
    27  al,  the  secretary  of  state, if he or she has issued a license to the
    28  respondent, and such other public officers as the division deems proper,
    29  and if any such order issued by the commissioner  concerns  a  regulated
    30  creditor, the commissioner shall forward a copy of any such order to the
    31  superintendent. A copy of any complaint filed against any respondent who
    32  has  previously  entered into a conciliation agreement pursuant to para-
    33  graph a of subdivision three of this section or as to whom an  order  of
    34  the  division  has  previously  been  entered pursuant to this paragraph
    35  shall be delivered to the attorney general, to the secretary of state if
    36  he or she has issued a license to  the  respondent  and  to  such  other
    37  public officers as the division deems proper, and if any such respondent
    38  is  a  regulated  creditor, the commissioner shall forward a copy of any
    39  such complaint to the superintendent.
    40    9. Any person claiming to be aggrieved by an  unlawful  discriminatory
    41  practice shall have a cause of action in any court of appropriate juris-
    42  diction  for  damages,  including[,  in  cases of housing discrimination
    43  only,] punitive damages, and such other remedies as may be  appropriate,
    44  including  any civil fines and penalties provided in subdivision four of
    45  this section, unless such person had filed a complaint hereunder or with
    46  any local commission on human rights, or with the superintendent  pursu-
    47  ant  to the provisions of section two hundred ninety-six-a of this chap-
    48  ter, provided that, where the division has dismissed such  complaint  on
    49  the  grounds  of administrative convenience, on the grounds of untimeli-
    50  ness, or on the grounds that the election of remedies is annulled,  such
    51  person  shall  maintain  all rights to bring suit as if no complaint had
    52  been filed with the division. At any time prior to a  hearing  before  a
    53  hearing  examiner,  a person who has a complaint pending at the division
    54  may request that the division dismiss the complaint and annul his or her
    55  election of remedies so that the human rights law claim may  be  pursued
    56  in court, and the division may, upon such request, dismiss the complaint

        A. 7083--A                          6
 
     1  on  the  grounds that such person's election of an administrative remedy
     2  is annulled. Notwithstanding subdivision (a) of section two hundred four
     3  of the civil practice law and rules, if a complaint is  so  annulled  by
     4  the  division,  upon  the  request  of the party bringing such complaint
     5  before the division, such party's rights to bring such cause  of  action
     6  before a court of appropriate jurisdiction shall be limited by the stat-
     7  ute of limitations in effect in such court at the time the complaint was
     8  initially filed with the division. Any party to a housing discrimination
     9  complaint  shall  have the right within twenty days following a determi-
    10  nation of probable cause pursuant to subdivision two of this section  to
    11  elect  to  have  an  action  commenced in a civil court, and an attorney
    12  representing the division of human rights will be appointed  to  present
    13  the  complaint  in court, or, with the consent of the division, the case
    14  may be presented by complainant's attorney. A  complaint  filed  by  the
    15  equal  employment opportunity commission to comply with the requirements
    16  of 42 USC 2000e-5(c) and 42 USC 12117(a) and 29  USC  633(b)  shall  not
    17  constitute the filing of a complaint within the meaning of this subdivi-
    18  sion.  No  person  who  has initiated any action in a court of competent
    19  jurisdiction or who has an  action  pending  before  any  administrative
    20  agency under any other law of the state based upon an act which would be
    21  an  unlawful  discriminatory  practice  under  this  article, may file a
    22  complaint with respect to the same grievance under this section or under
    23  section two hundred ninety-six-a of this article.
    24    10. With respect to all cases of housing  discrimination  and  housing
    25  related  credit  discrimination  in an action or proceeding at law under
    26  this section or section two hundred ninety-eight of  this  article,  the
    27  commissioner  or the court may in its discretion award reasonable attor-
    28  ney's fees to any prevailing or substantially prevailing party; and with
    29  respect to a claim of [employment or] credit discrimination where sex is
    30  a basis of such discrimination, and with respect to a claim in all cases
    31  of employment discrimination in an action or  proceeding  at  law  under
    32  this  section  or  section two hundred ninety-eight of this article, the
    33  commissioner or the court [may in its discretion] shall award reasonable
    34  attorney's fees attributable to such  claim  to  any  prevailing  party;
    35  provided, however, that a prevailing respondent or defendant in order to
    36  recover  such  reasonable  attorney's fees must make a motion requesting
    37  such fees and show that the action or proceeding brought was  frivolous;
    38  and  further  provided  that  in a proceeding brought in the division of
    39  human rights, the commissioner may only award attorney's fees as part of
    40  a final order after a public hearing held pursuant to  subdivision  four
    41  of  this  section.  In  no  case shall attorney's fees be awarded to the
    42  division, nor shall the division be liable to a prevailing  or  substan-
    43  tially  prevailing  party for attorney's fees, except in a case in which
    44  the division is a party to the action or the  proceeding  in  the  divi-
    45  sion's capacity as an employer. In cases of employment discrimination, a
    46  respondent  shall only be liable for attorney's fees under this subdivi-
    47  sion if the respondent has been found liable  for  having  committed  an
    48  unlawful  discriminatory  practice.  In  order  to  find  the  action or
    49  proceeding to be frivolous, the court or the commissioner must  find  in
    50  writing one or more of the following:
    51    (a)  the  action or proceeding was commenced, used or continued in bad
    52  faith, solely to delay or prolong the resolution of the litigation or to
    53  harass or maliciously injure another; or
    54    (b) the action or proceeding was commenced or continued in  bad  faith
    55  without  any reasonable basis and could not be supported by a good faith
    56  argument for an extension, modification or reversal of existing law.  If

        A. 7083--A                          7
 
     1  the  action  or  proceeding  was promptly discontinued when the party or
     2  attorney learned or should have learned that the  action  or  proceeding
     3  lacked such a reasonable basis, the court may find that the party or the
     4  attorney did not act in bad faith.
     5    §  7.  Section  300 of the executive law, as amended by chapter 166 of
     6  the laws of 2000, is amended to read as follows:
     7    § 300. Construction. The provisions of this article shall be construed
     8  liberally for the  accomplishment  of  the  remedial  purposes  thereof,
     9  regardless  of  whether  federal  civil and human rights laws, including
    10  those laws with provisions worded comparably to the provisions  of  this
    11  article,  have  been so construed. Exceptions to and exemptions from the
    12  provisions of this article shall be construed narrowly in order to maxi-
    13  mize deterrence of discriminatory conduct.  Nothing  contained  in  this
    14  article  shall  be  deemed  to repeal any of the provisions of the civil
    15  rights law or any other law of this  state  relating  to  discrimination
    16  [because  of  race,  creed,  color  or national origin]; but, as to acts
    17  declared unlawful by section two hundred ninety-six of this article, the
    18  procedure herein provided shall, while pending, be  exclusive;  and  the
    19  final  determination  therein  shall  exclude any other action, civil or
    20  criminal, based on the same grievance of the  individual  concerned.  If
    21  such  individual  institutes  any action based on such grievance without
    22  resorting to the procedure provided in this article, he or she  may  not
    23  subsequently resort to the procedure herein.
    24    §  8.  This  act shall take effect on the thirtieth day after it shall
    25  have become a law; provided, however that the amendments made to section
    26  296-b of the executive law made by section four of this act  shall  take
    27  effect  on the same date and in the same manner as chapter 8 of the laws
    28  of 2019 takes effect.
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