A00395 Summary:

COSPNSRDe La Rosa, Simon, Colton, Seawright
Add 44, Lab L; amd 296, add 96-b, Exec L
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.
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A00395 Actions:

01/06/2021referred to labor
01/05/2022referred to labor
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A00395 Committee Votes:

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A00395 Floor Votes:

There are no votes for this bill in this legislative session.
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A00395 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  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 sector   PURPOSE: 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 training program. 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.   JUSTIFICATION: 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.   LEGISLATIVE HISTORY: 2020: A7485 (Rozic) - Labor 2019: A7485 (Rozic) - Labor 2018: A8910 (Rozic) - Labor   FISCAL IMPACT ON THE STATE: Minimal   EFFECTIVE DATE: This act shall take effect on the one hundred eightieth day after becom- ing law.
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A00395 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                     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-
    14  ue.
    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
     9  to:
    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.
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