Amd §§292, 296 & 297, Exec L; amd §16, Chap of 2019 (as proposed in A.8421 & S.6577)
Makes certain chapter amendments relating to law providing increased protections for protected classes and special protections for employees who have been sexually harassed and relates to the effectiveness of certain claims.
STATE OF NEW YORK
________________________________________________________________________
8424
2019-2020 Regular Sessions
IN ASSEMBLY
June 17, 2019
___________
Introduced by M. of A. SIMOTAS -- read once and referred to the Commit-
tee on Codes
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; and to amend a chapter of the laws of 2019,
amending the executive law relating to increased protections for
protected classes and special protections for employees who have been
sexually harassed, as proposed in legislative bills numbers A. 8421
and S. 6577, in relation to the effectiveness thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 5 of section 292 of the executive law, as
2 amended by a chapter of the laws of 2019 amending the executive law and
3 other laws relating to increased protections for protected classes and
4 special protections for employees who have been sexually harassed, as
5 proposed in legislative bills numbers S. 6577 and A. 8421, is amended to
6 read as follows:
7 5. The term "employer" shall include all employers within the state[,
8 including the state and all political subdivisions thereof].
9 § 2. Paragraph (h) of subdivision 1 of section 296 of the executive
10 law, as added by a chapter of the laws of 2019 amending the executive
11 law and other laws relating to increased protections for protected
12 classes and special protections for employees who have been sexually
13 harassed, as proposed in legislative bills numbers S. 6577 and A. 8421,
14 is amended to read as follows:
15 (h) For an employer, licensing agency, employment agency or labor
16 organization to subject any individual to harassment because of an indi-
17 vidual's age, race, creed, color, national origin, sexual orientation,
18 gender identity or expression, military status, sex, disability, predis-
19 posing genetic characteristics, familial status, marital status, domes-
20 tic violence victim status, or because the individual has opposed any
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08950-05-9
A. 8424 2
1 practices forbidden under this article or because the individual has
2 filed a complaint, testified or assisted in any proceeding under this
3 article, regardless of whether such harassment would be considered
4 severe or pervasive under precedent applied to harassment claims. Such
5 harassment is an unlawful discriminatory practice when it subjects an
6 individual to inferior terms, conditions or privileges of employment
7 because of the individual's membership in one or more of these protected
8 categories. The fact that such individual did not make a complaint about
9 the harassment to such employer, licensing agency, employment agency or
10 labor organization shall not be determinative of whether such employer,
11 licensing agency, employment agency or labor organization shall be
12 liable. Nothing in this section shall imply that an employee must demon-
13 strate the existence of an individual to whom the employee's treatment
14 must be compared. It shall be an affirmative defense to liability under
15 this subdivision that the harassing conduct does not rise above the
16 level of what a reasonable victim of discrimination with the same
17 protected characteristic or characteristics would consider petty slights
18 or trivial inconveniences.
19 § 3. Subdivision 10 of section 297 of the executive law, as amended by
20 a chapter of the laws of 2019 amending the executive law and other laws
21 relating to increased protections for protected classes and special
22 protections for employees who have been sexually harassed, as proposed
23 in legislative bills numbers S. 6577 and A. 8421, is amended to read as
24 follows:
25 10. With respect to all cases of housing discrimination and housing
26 related credit discrimination in an action or proceeding at law under
27 this section or section two hundred ninety-eight of this article, the
28 commissioner or the court may in its discretion award reasonable attor-
29 ney's fees to any prevailing or substantially prevailing party; and with
30 respect to a claim of credit discrimination where sex is a basis of such
31 discrimination, and with respect to all claims of employment discrimi-
32 nation in an action or proceeding at law under this section or section
33 two hundred ninety-eight of this article, the commissioner or the court
34 [shall] may in its discretion award reasonable attorney's fees attribut-
35 able to such claim to any prevailing party; provided, however, that a
36 prevailing respondent or defendant in order to recover such reasonable
37 attorney's fees must make a motion requesting such fees and show that
38 the action or proceeding brought was frivolous; and further provided
39 that in a proceeding brought in the division of human rights, the
40 commissioner may only award attorney's fees as part of a final order
41 after a public hearing held pursuant to subdivision four of this
42 section. In no case shall attorney's fees be awarded to the division,
43 nor shall the division be liable to a prevailing or substantially
44 prevailing party for attorney's fees, except in a case in which the
45 division is a party to the action or the proceeding in the division's
46 capacity as an employer. In cases of employment discrimination, a
47 respondent shall only be liable for attorney's fees under this subdivi-
48 sion if the respondent has been found liable for having committed an
49 unlawful discriminatory practice. In order to find the action or
50 proceeding to be frivolous, the court or the commissioner must find in
51 writing one or more of the following:
52 (a) the action or proceeding was commenced, used or continued in bad
53 faith, solely to delay or prolong the resolution of the litigation or to
54 harass or maliciously injure another; or
55 (b) the action or proceeding was commenced or continued in bad faith
56 without any reasonable basis and could not be supported by a good faith
A. 8424 3
1 argument for an extension, modification or reversal of existing law. If
2 the action or proceeding was promptly discontinued when the party or
3 attorney learned or should have learned that the action or proceeding
4 lacked such a reasonable basis, the court may find that the party or the
5 attorney did not act in bad faith.
6 § 4. Subdivision (d) of section 16 of a chapter of the laws of 2019,
7 amending the executive law relating to increased protections for
8 protected classes and special protections for employees who have been
9 sexually harassed, as proposed in legislative bills numbers A. 8421 and
10 S. 6577, is amended to read as follows:
11 (d) Sections one, one-a, two, three, four, five, six and thirteen
12 shall only apply to claims [filed] accrued under such sections on or
13 after the effective date of such sections.
14 § 5. This act shall take effect on the same date and in the same
15 manner as a chapter of the laws of 2019 amending the executive law and
16 other laws relating to increased protections for protected classes and
17 special protections for employees who have been sexually harassed, as
18 proposed in legislative bills numbers S. 6577 and A. 8421, takes effect.
