STATE OF NEW YORK
________________________________________________________________________
4109
2019-2020 Regular Sessions
IN SENATE
February 28, 2019
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Investigations and Govern-
ment 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
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
14 party thereto certifies as to its own organization, under penalty of
15 perjury, that the bidder has and has implemented a written policy
16 addressing [sexual harassment] discrimination prevention in the work-
17 place and provides annual [sexual harassment] discrimination prevention
18 training to all of its employees. Such policy shall, at a minimum, meet
19 the requirements of section two hundred one-g of the labor law."
20 § 2. Paragraphs 2 and 3 of subdivision (a) of section 7515 of the
21 civil practice law and rules, as added by section 1 of subpart B of part
22 KK of chapter 57 of the laws of 2018, are amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10167-01-9
S. 4109 2
1 2. The term "prohibited clause" shall mean any clause or provision in
2 any contract which requires as a condition of the enforcement of the
3 contract or obtaining remedies under the contract that the parties
4 submit to mandatory arbitration to resolve any allegation or claim of
5 [an unlawful discriminatory practice of sexual harassment] discrimi-
6 nation, in violation of laws prohibiting discrimination, including but
7 not limited to, article fifteen of the executive law.
8 3. The term "mandatory arbitration clause" shall mean a term or
9 provision contained in a written contract which requires the parties to
10 such contract to submit any matter thereafter arising under such
11 contract to arbitration prior to the commencement of any legal action to
12 enforce the provisions of such contract and which also further provides
13 language to the effect that the facts found or determination made by the
14 arbitrator or panel of arbitrators in its application to a party alleg-
15 ing [an unlawful discriminatory practice based on sexual harassment]
16 discrimination, in violation of laws prohibiting discrimination, includ-
17 ing but not limited to, article fifteen of the executive law shall be
18 final and not subject to independent court review.
19 § 3. The section heading and subdivision 2 of section 17-a of the
20 public officers law, as added by section 1 of subpart C of part KK of
21 chapter 57 of the laws of 2018, are amended to read as follows:
22 Reimbursement of funds paid by state agencies and state entities for
23 the payment of awards adjudicated in [sexual harassment] discrimination
24 claims.
25 2. Notwithstanding any law to the contrary, any employee who has been
26 subject to a final judgment of personal liability for intentional wrong-
27 doing related to a claim of [sexual harassment] discrimination, in
28 violation of laws prohibiting discrimination, including but not limited
29 to, article fifteen of the executive law, shall reimburse any state
30 agency or entity that makes a payment to a plaintiff for an adjudicated
31 award based on a claim of [sexual harassment] discrimination, in
32 violation of laws prohibiting discrimination, including but not limited
33 to, article fifteen of the executive law resulting in a judgment, for
34 his or her proportionate share of such judgment. Such employee shall
35 personally reimburse such state agency or entity within ninety days of
36 the state agency or entity's payment of such award.
37 § 4. The section heading and subdivision 2 of section 18-a of the
38 public officers law, as added by section 2 of subpart C of part KK of
39 chapter 57 of the laws of 2018, are amended to read as follows:
40 Reimbursement of funds paid by a public entity for the payment of
41 awards adjudicated in [sexual harassment] discrimination claims.
42 2. Notwithstanding any law to the contrary, any employee who has been
43 subject to a final judgment of personal liability for intentional wrong-
44 doing related to a claim of [sexual harassment] discrimination, in
45 violation of laws prohibiting discrimination, including but not limited
46 to, article fifteen of the executive law, shall reimburse any public
47 entity that makes a payment to a plaintiff for an adjudicated award
48 based on a claim of [sexual harassment] discrimination, in violation of
49 laws prohibiting discrimination, including but not limited to, article
50 fifteen of the executive law resulting in a judgment, for his or her
51 proportionate share of such judgment. Such employee shall personally
52 reimburse such public entity within ninety days of the public entity's
53 payment of such award.
54 § 5. Section 5-336 of the general obligations law, as added by section
55 1 of subpart D of part KK of chapter 57 of the laws of 2018, is amended
56 to read as follows:
S. 4109 3
1 § 5-336. Nondisclosure agreements. Notwithstanding any other law to
2 the contrary, no employer, its officers or employees shall have the
3 authority to include or agree to include in any settlement, agreement or
4 other resolution of any claim, the factual foundation for which involves
5 [sexual harassment] discrimination, in violation of laws prohibiting
6 discrimination, including but not limited to, article fifteen of the
7 executive law, any term or condition that would prevent the disclosure
8 of the underlying facts and circumstances to the claim or action unless
9 the condition of confidentiality is the complainant's preference. Any
10 such term or condition must be provided to all parties, and the
11 complainant shall have twenty-one days to consider such term or condi-
12 tion. If after twenty-one days such term or condition is the
13 complainant's preference, such preference shall be memorialized in an
14 agreement signed by all parties. For a period of at least seven days
15 following the execution of such agreement, the complainant may revoke
16 the agreement, and the agreement shall not become effective or be
17 enforceable until such revocation period has expired.
18 § 6. Section 5003-b of the civil practice law and rules, as added by
19 section 2 of subpart D of part KK of chapter 57 of the laws of 2018, is
20 amended to read as follows:
21 § 5003-b. Nondisclosure agreements. Notwithstanding any other law to
22 the contrary, for any claim or cause of action, whether arising under
23 common law, equity, or any provision of law, the factual foundation for
24 which involves [sexual harassment] discrimination, in violation of laws
25 prohibiting discrimination, including but not limited to, article
26 fifteen of the executive law, in resolving, by agreed judgment, stipu-
27 lation, decree, agreement to settle, assurance of discontinuance or
28 otherwise, no employer, its officer or employee shall have the authority
29 to include or agree to include in such resolution any term or condition
30 that would prevent the disclosure of the underlying facts and circum-
31 stances to the claim or action unless the condition of confidentiality
32 is the plaintiff's preference. Any such term or condition must be
33 provided to all parties, and the plaintiff shall have twenty-one days to
34 consider such term or condition. If after twenty-one days such term or
35 condition is the plaintiff's preference, such preference shall be memo-
36 rialized in an agreement signed by all parties. For a period of at least
37 seven days following the execution of such agreement, the plaintiff may
38 revoke the agreement, and the agreement shall not become effective or be
39 enforceable until such revocation period has expired.
40 § 7. Section 201-g of the labor law, as added by section 1 of subpart
41 E of part KK of chapter 57 of the laws of 2018, is amended to read as
42 follows:
43 § 201-g. Prevention of [sexual harassment] discrimination. 1. The
44 department shall consult with the division of human rights to create and
45 publish a model [sexual harassment] discrimination prevention guidance
46 document and [sexual harassment prevention] discrimination prevention
47 policy that employers may utilize in their adoption of [a sexual harass-
48 ment prevention] the policy required by this section. For purposes of
49 this section, "discrimination" shall mean unlawful discriminatory prac-
50 tice, as defined in section two hundred ninety-six of the executive law
51 and/or discrimination or harassment based on race, color, sex, national
52 origin, creed, sexual orientation, gender identity or expression, age,
53 disability, military status, familial status, marital status, predispos-
54 ing genetic characteristics, or domestic violence victim status.
55 a. Such model [sexual harassment prevention] discrimination prevention
56 policy shall: (i) prohibit [sexual harassment] discrimination consistent
S. 4109 4
1 with guidance issued by the department in consultation with the division
2 of human rights and provide examples of prohibited conduct that would
3 constitute unlawful [sexual harassment] discrimination; (ii) include but
4 not be limited to information concerning the federal and state statutory
5 provisions concerning [sexual harassment] discrimination and remedies
6 available to victims of [sexual harassment] discrimination and a state-
7 ment that there may be applicable local laws; (iii) include a standard
8 complaint form; (iv) include a procedure for the timely and confidential
9 investigation of complaints and ensure due process for all parties; (v)
10 inform employees of their rights of redress and all available forums for
11 adjudicating [sexual harassment] discrimination complaints administra-
12 tively and judicially; (vi) clearly state that [sexual harassment]
13 discrimination is considered a form of employee misconduct and that
14 sanctions will be enforced against individuals engaging in [sexual
15 harassment] discrimination and against supervisory and managerial
16 personnel who knowingly allow such behavior to continue; and (vii)
17 clearly state that retaliation against individuals who complain of
18 [sexual harassment] discrimination or who testify or assist in any
19 proceeding under the law is unlawful.
20 b. Every employer shall adopt the model [sexual harassment] discrimi-
21 nation prevention policy promulgated pursuant to this subdivision or
22 establish a [sexual harassment] discrimination prevention policy to
23 prevent [sexual harassment] discrimination that equals or exceeds the
24 minimum standards provided by such model [sexual harassment prevention]
25 policy. Such [sexual harassment prevention] policy shall be provided to
26 all employees in writing. Such model [sexual harassment prevention]
27 policy shall be publicly available and posted on the websites of both
28 the department and the division of human rights.
29 2. The department shall consult with the division of human rights and
30 produce a model [sexual harassment] discrimination prevention training
31 program to prevent [sexual harassment] discrimination in the workplace.
32 a. Such model [sexual harassment prevention] training program shall be
33 interactive and include: (i) an explanation of [sexual harassment]
34 discrimination consistent with guidance issued by the department in
35 consultation with the division of human rights; (ii) examples of conduct
36 that would constitute unlawful [sexual harassment] discrimination; (iii)
37 information concerning the federal and state statutory provisions
38 concerning [sexual harassment] discrimination and remedies available to
39 victims of [sexual harassment] discrimination; and (iv) information
40 concerning employees' rights of redress and all available forums for
41 adjudicating complaints.
42 b. The department shall include information in such model [sexual
43 harassment prevention] training program addressing conduct by supervi-
44 sors and any additional responsibilities for such supervisors.
45 c. Every employer shall utilize [the] such model [sexual harassment
46 prevention] training program pursuant to this subdivision or establish a
47 training program for employees to prevent [sexual harassment] discrimi-
48 nation that equals or exceeds the minimum standards provided by such
49 model training. Such [sexual harassment prevention] training program
50 shall be provided to all employees on an annual basis.
51 3. The commissioner may promulgate regulations as he or she deems
52 necessary for the purposes of carrying out the provisions of this
53 section.
54 § 8. Section 296-d of the executive law, as added by section 1 of
55 subpart F of part KK of chapter 57 of the laws of 2018, is amended to
56 read as follows:
S. 4109 5
1 § 296-d. [Sexual harassment] Discrimination relating to non-employees.
2 It shall be an unlawful discriminatory practice for an employer to
3 permit [sexual harassment] discrimination or harassment based on race,
4 color, sex, national origin, creed, sexual orientation, gender identity
5 or expression, age, disability, military status, familial status, mari-
6 tal status, predisposing genetic characteristics, or domestic violence
7 victim status of non-employees in its workplace. An employer may be
8 held liable to a non-employee who is a contractor, subcontractor,
9 vendor, consultant or other person providing services pursuant to a
10 contract in the workplace or who is an employee of such contractor,
11 subcontractor, vendor, consultant or other person providing services
12 pursuant to a contract in the workplace, with respect to [sexual harass-
13 ment] discrimination or harassment based on race, color, sex, national
14 origin, creed, sexual orientation, gender identity or expression, age,
15 disability, military status, familial status, marital status, predispos-
16 ing genetic characteristics, or domestic violence victim status, when
17 the employer, its agents or supervisors knew or should have known that
18 such non-employee was subjected to [sexual harassment] discrimination or
19 harassment based on race, color, sex, national origin, creed, sexual
20 orientation, gender identity or expression, age, disability, military
21 status, familial status, marital status, predisposing genetic character-
22 istics, or domestic violence victim status in the employer's workplace,
23 and the employer failed to take immediate and appropriate corrective
24 action. In reviewing such cases involving non-employees, the extent of
25 the employer's control and any other legal responsibility which the
26 employer may have with respect to the conduct of the harasser shall be
27 considered.
28 § 9. Subdivision 5 of section 292 of the executive law, as amended by
29 chapter 363 of the laws of 2015, is amended to read as follows:
30 5. The term "employer" [does not include any employer with fewer than
31 four persons in his or her employ except as set forth in section two
32 hundred ninety-six-b of this article, provided, however, that in the
33 case of an action for discrimination based on sex pursuant to subdivi-
34 sion one of section two hundred ninety-six of this article, with respect
35 to sexual harassment only, the term "employer"] shall include all
36 employers within the state.
37 § 10. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
38 vision 9 as amended by chapter 359 of the laws of 1969, are amended to
39 read as follows:
40 9. Bring and prosecute or defend upon request of the [industrial]
41 commissioner of labor or the state division of human rights, any civil
42 action or proceeding, the institution or defense of which in his judg-
43 ment is necessary for effective enforcement of the laws of this state
44 against discrimination by reason of age, race, sex, creed, color [or],
45 national origin, sexual orientation, gender identity or expression,
46 military status, disability, predisposing genetic characteristics, fami-
47 lial status, marital status, or domestic violence victim status, or for
48 enforcement of any order or determination of such commissioner or divi-
49 sion made pursuant to such laws.
50 10. Prosecute every person charged with the commission of a criminal
51 offense in violation of any of the laws of this state against discrimi-
52 nation because of age, race, sex, creed, color, [or] national origin,
53 sexual orientation, gender identity or expression, military status,
54 disability, predisposing genetic characteristics, familial status, mari-
55 tal status, or domestic violence victim status, in any case where in his
56 judgment, because of the extent of the offense, such prosecution cannot
S. 4109 6
1 be effectively carried on by the district attorney of the county wherein
2 the offense or a portion thereof is alleged to have been committed, or
3 where in his judgment the district attorney has erroneously failed or
4 refused to prosecute. In all such proceedings, the attorney-general may
5 appear in person or by his deputy or assistant before any court or any
6 grand jury and exercise all the powers and perform all the duties in
7 respect of such actions or proceedings which the district attorney would
8 otherwise be authorized or required to exercise or perform.
9 § 11. Severability clause. If any clause, sentence, paragraph, subdi-
10 vision, section or subpart of this act shall be adjudged by any court of
11 competent jurisdiction to be invalid, such judgment shall not affect,
12 impair, or invalidate the remainder thereof, but shall be confined in
13 its operation to the clause, sentence, paragraph, subdivision, section
14 or subject thereof directly involved in the controversy in which such
15 judgment shall have been rendered. It is hereby declared to be the
16 intent of the legislature that this act would have been enacted even if
17 such invalid provisions had not been included herein.
18 § 12. This act shall take effect immediately; provided however:
19 (a) section one of this act shall take effect on the first of January
20 next succeeding the date on which it shall have become a law;
21 (b) sections two, five, and six of this act shall take effect on the
22 ninetieth day after they shall have become a law; and
23 (c) section seven of this act shall take effect on the one hundred
24 eightieth day after it shall have become a law.
25 (d) effective immediately, the addition, amendment and/or repeal of
26 any rule or regulation necessary for the implementation of this act on
27 its effective date are authorized and directed to be made and completed
28 on or before such effective date.
