STATE OF NEW YORK
________________________________________________________________________
3377
2019-2020 Regular Sessions
IN SENATE
February 6, 2019
___________
Introduced by Sens. GOUNARDES, KRUEGER, BIAGGI -- read twice and ordered
printed, and when printed to be committed to the Committee on Investi-
gations and Government Operations
AN ACT to amend the executive law, in relation to unlawful discriminato-
ry practices involving sexual harassment
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 296 of the executive law is amended by adding
2 three new subdivisions 1-b, 22 and 23 to read as follows:
3 1-b. It shall be an unlawful discriminatory practice for an employer
4 to:
5 (a) engage in unwelcome sexual advances towards, make requests for
6 sexual favors from, or engage in other verbal or physical conduct of a
7 sexual or sex-based nature with an employee when: (i) submission to such
8 conduct is made either explicitly or implicitly a term or condition of
9 an individual's employment; (ii) submission to or rejection of such
10 conduct by an individual is used as the basis for employment decisions
11 affecting such individual; or (iii) such conduct has the purpose or
12 effect of interfering with an individual's work performance by creating
13 an intimidating, hostile, or offensive working environment.
14 (b) For the purposes of this subdivision, "employer" shall include any
15 individual who may hire, transfer, suspend, lay off, recall, promote,
16 discharge, assign, reward, or discipline other employees, or has respon-
17 sibility to direct them or effectively recommend such action, if the use
18 of such authority is not merely routine or clerical in nature, but
19 requires the use of independent judgment.
20 22. In any case brought pursuant to the provisions of this article on
21 the basis of sex or sexual harassment only, where a person alleges that
22 a covered entity has deprived such person of equal terms and conditions
23 of employment, liability for such alleged unlawful discriminatory act
24 shall attach where the complainant or plaintiff demonstrates that the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06473-02-9
S. 3377 2
1 conduct complained of was motivated in whole or in part by the person's
2 sex, regardless of the level of pervasiveness or severity of the
3 discrimination or harassment. A covered entity may demonstrate as an
4 affirmative defense to liability pursuant to this subdivision that the
5 discrimination or harassment complained of consisted of no greater than
6 what a reasonable victim of discrimination or harassment would consider
7 petty slights and trivial annoyances.
8 23. In any case brought pursuant to the provisions of this article on
9 the basis of sex or sexual harassment only, it shall not be defense or a
10 partial defense that the employee failed to complain about, or utilize
11 any particular complaint procedure to complain about, such unlawful
12 discriminatory act or acts when the person to whom the employee would or
13 would be required to complain is the person whose conduct is the subject
14 of the complaint.
15 § 2. Subdivision 5 of section 292 of the executive law, as amended by
16 chapter 363 of the laws of 2015, is amended to read as follows:
17 5. The term "employer" does not include any employer with fewer than
18 four persons in his or her employ except as set forth in section two
19 hundred ninety-six-b of this article, provided, however, that in the
20 case of an action for discrimination based on sex pursuant to subdivi-
21 sion one of section two hundred ninety-six of this article[, with
22 respect to] or, in the case of sexual harassment [only,] pursuant to
23 subdivision one-b of section two hundred ninety-six of this article, the
24 term "employer" shall include all employers within the state.
25 § 3. The division of human rights shall be authorized to promulgate,
26 amend or repeal rules or regulations on an emergency basis to implement
27 the provisions of this act.
28 § 4. This act shall take effect immediately.
