Relates to establishing sexual harassment prevention training protocols within the private sector including a model management policy and training program and how to properly disseminate information to employers and employees.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A395
TITLE OF BILL:
An act to amend the labor law and the executive law, in relation to
establishing sexual harassment prevention protocols within the private
To prevent sexual harassment in the workplace, provide remedies to
address sexual harassment, and proscribe affirmative conduct to help
prevent future incidents of sexual harassment
SUMMARY OF PROVISIONS:
Section 1 amends the labor law by adding a new section 44 to require the
Department of Labor to draft a model sexual harassment policy and model
sexual harassment prevention training for employees, in order to allow
all employers with easier access to resources to prevent sexual harass-
ment in the workplace. The Department may consult with the Division of
Human Rights in the creation and distribution of the model policy and
Section 2 amends section 296 of the executive law by adding new subdivi-
sions 1-b and 22 to clearly add sexual harassment as an unlawful discri-
minatory practice. Sexual harassment is defined as unwelcome sexual
advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature, where a) submission to the above conduct is
explicitly or implicitly a condition of employment, b) submission or
rejection is the basis for an employment decision affecting the individ-
ual, or c) engaging in the above conduct when it has the purpose or
effect of interfering with an individual's work performance by creating
an intimidating, hostile, or offensive working environment.
Section 2 ensures that any individual with supervisory authority is
considered a supervisor for the purpose of vicarious liability to the
employer. While sexual harassment is generally viewed by courts as being
prohibited based on discrimination on the basis of gender, adding a
clear and concise definition as already provided for in the case of
domestic workers will provide clear standards to the courts and employ-
ers that sexual harassment is unlawful and subject to specific remedies.
Section 2 also provides that in a case of discrimination on the basis of
sex or a case of sexual harassment, a practice may be discriminatory
regardless of the pervasiveness or seriousness of the conduct, as long
as the conduct is motivated in whole or part by the individual's gender.
A covered entity may rebut the claim with an affirmative defense that
the conduct was no greater than what a reasonable victim of discrimi-
nation would consider petty slights or trivial annoyances. This section
would essentially ensure that one noteworthy act of harassment or gender
discrimination was unlawful, in response to certain cases and patterns
of practice where minor acts of harassment are not treated as unlawful
until a broad pattern can be demonstrated.
Section 3 amends subdivision 5 of section 292 of the executive law to
provide that an employee of a business with less than four employees may
bring any case of gender discrimination, as opposed to current law that
limits such cases to only acts of sexual harassment. This section
ensures that the broadest type of conduct motivated by a person's
gender, including but not limited to sexual harassment, is covered under
the Human Rights Law.
Section 4 amends the executive law to require the Department of State to
provide notice to an individual incorporating a business of the anti-
sexual harassment laws covered in this legislation. The notice shall
include the definition of sexual harassment under Section 2 of this act.
Section 5 sets forth the effective date.
Several high profile incidents of sexual harassment in both the public
and private sectors have emphasized the inadequate state remedies for
employees who are victims of sexual harassment.
The state's failure to properly address such discriminatory conduct
fails to promote gender equality in the workplace and subjects employees
to hostile conduct at work. In New York, sexual harassment is not even
defined as an unlawful discriminatory conduct under the state human
rights law for all employees. Many other states have adopted anti-sexual
harassment provision of law to help employees experience workplace
conditions free of hostile sexual conduct and help employers clearly
understand what conduct shall be deemed unlawful.
Basic steps to outlaw sexual harassment in the workplace and promote
education about improper conduct can improve the workplace conditions
that employees in the private sector. This legislation provides a defi-
nition of sexual harassment and would make it easier for a victim of
sexual harassment to receive redress for their experiences. By adding a
state definition and strengthening legal remedies against such conduct,
this legislation will help address current workplace grievances and
promote harassment-free workplaces for all employees to enjoy.
2020: A7485 (Rozic) - Labor
2019: A7485 (Rozic) - Labor
2018: A8910 (Rozic) - Labor
FISCAL IMPACT ON THE STATE:
This act shall take effect on the one hundred eightieth day after becom-
STATE OF NEW YORK
2021-2022 Regular Sessions
January 6, 2021
Introduced by M. of A. ROZIC, DE LA ROSA, SIMON, COLTON -- read once and
referred to the Committee on Labor
AN ACT to amend the labor law and the executive law, in relation to
establishing sexual harassment prevention protocols within the private
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 44 to
2 read as follows:
3 § 44. Prevention of sexual harassment. 1. The department shall produce
4 a strong model management policy statement defining and prohibiting
5 sexual harassment in the workplace. Such model policy shall include
6 recommendations on how employers may provide information and remedies to
7 employees, including but not limited to a statement informing employees
8 of their rights of redress, and the availability of complaint resolution
9 channels and assistance with incidents of sexual harassment. Such model
10 policy statement shall clearly state that sexual harassment is consid-
11 ered a form of employee misconduct and that sanctions will be enforced
12 against individuals engaging in sexual harassment and against superviso-
13 ry and managerial personnel who knowingly allow such behavior to contin-
15 2. The department shall produce a model training program to prevent
16 sexual harassment in the workplace.
17 (a) Such model training program shall include information concerning
18 the federal and state statutory provisions concerning sexual harassment
19 and remedies available to victims of sexual harassment.
20 (b) Such department shall also include information in such model
21 program specifically addressing conduct by supervisors as both partic-
22 ipants in a general training program and in a supervisor-specific
23 program to prevent sexual harassment in the workplace.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 395 2
1 3. The department may consult with the division of human rights in the
2 production of information set forth under this section.
3 4. The commissioner shall promulgate regulations allowing for distrib-
4 ution of the availability of the information set forth in this section
5 to employers and the public.
6 § 2. Section 296 of the executive law is amended by adding two new
7 subdivisions 1-b and 23 to read as follows:
8 1-b. It shall be an unlawful discriminatory practice for an employer
10 (a) engage in unwelcome sexual advances towards, make requests for
11 sexual favors from, or engage in other verbal or physical conduct of a
12 sexual or sex-based nature with an employee when: (i) submission to such
13 conduct is made either explicitly or implicitly a term or condition of
14 an individual's employment; (ii) submission to or rejection of such
15 conduct by an individual is used as the basis for employment decisions
16 affecting such individual; or (iii) such conduct has the purpose or
17 effect of interfering with an individual's work performance by creating
18 an intimidating, hostile, or offensive working environment.
19 (b) For the purposes of this subdivision, "employer" shall include any
20 individual who may hire, transfer, suspend, lay off, recall, promote,
21 discharge, assign, reward, or discipline other employees, or has respon-
22 sibility to direct them or effectively recommend such action, if the use
23 of such authority is not merely routine or clerical in nature, but
24 requires the use of independent judgment.
25 23. In any case brought pursuant to the provisions of this article on
26 the basis of sex or sexual harassment only, where a person alleges that
27 a covered entity has deprived such person of equal terms and conditions
28 of employment, liability for such alleged unlawful discriminatory act
29 shall attach where the complainant or plaintiff demonstrates that the
30 conduct complained of was motivated in whole or in part by the person's
31 sex, regardless of the level of pervasiveness or severity of the
32 discrimination or harassment. A covered entity may demonstrate as an
33 affirmative defense to liability pursuant to this subdivision that the
34 discrimination or harassment complained of consisted of no greater than
35 what a reasonable victim of discrimination or harassment would consider
36 petty slights and trivial annoyances.
37 § 3. The executive law is amended by adding a new section 96-b to
38 read as follows:
39 § 96-b. Notification of laws on sexual harassment in the workplace. 1.
40 For any entity filing and paying filing fees under subdivision nine of
41 section ninety-six of this article, the department shall respond to an
42 authorized individual on behalf of the entity with notice of state law
43 on sexual harassment in the workplace.
44 2. Notice provided to filing entities shall include information pursu-
45 ant to section forty-four of the labor law and subdivision one-b of
46 section two hundred ninety-six of this chapter. The secretary of state
47 shall promulgate regulations to adhere to this section including the
48 nature of the required notice, the timing that such notice shall be
49 delivered to an authorized individual on behalf of a filing entity, and
50 any additional information to be included in such notice.
51 § 4. This act shall take effect on the one hundred eightieth day after
52 it shall have become a law.