Ren §§300 & 301 to be §§308 & 309, add §300, amd §295, Exec L
Requires employers to annually report to the division of human rights the number of settlements with employees and other individuals performing services in the workplace regarding claims of discrimination on the basis of sex, including verbal and physical sexual harassment; provides for legal remedies for violations of the reporting requirement; requires the division of human rights to provide an annual report to the governor and the legislature; and makes conforming technical changes.
STATE OF NEW YORK
________________________________________________________________________
8740
IN SENATE
May 10, 2018
___________
Introduced by Sen. HOYLMAN -- 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 executive law, in relation to requiring employers to
annually report to the division of human rights the number of settle-
ments with employees and other individuals performing services in the
workplace regarding claims of discrimination on the basis of sex,
including verbal and physical sexual harassment; providing for legal
remedies for violations of the reporting requirement; requiring the
division of human rights to provide an annual report to the governor
and the legislature; and to make conforming technical changes
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Sections 300 and 301 of the executive law are renumbered
2 sections 308 and 309.
3 § 2. The executive law is amended by adding a new section 300 to read
4 as follows:
5 § 300. Reporting of workplace sexual harassment claims. 1. Each
6 employer subject to the provisions of section two hundred ninety-two of
7 this article shall annually report to the division the total number of
8 settlements reached with employees and non-employees regarding the
9 resolution of claims of discrimination on the basis of sex, including
10 verbal and physical sexual harassment.
11 2. Settlements required to be reported under this section shall
12 include any agreement or arrangement where anything of value is
13 conferred to the individual raising the claim in return for such indi-
14 vidual declining to further pursue the claim, and any internal mediation
15 or other workplace resolution that results in the individual declining
16 to further pursue the claim.
17 3. Claims of discrimination on the basis of sex include, but are not
18 limited to, claims of the following:
19 (a) inappropriate or unwanted touching;
20 (b) verbal comments about sex or of a sexual nature, which may include
21 comments to an individual about the individual's body or sexual or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15140-02-8
S. 8740 2
1 romantic activity or the body or sexual or romantic activity of the
2 individual making the comments;
3 (c) referring to another individual by a name or nickname of a roman-
4 tic, demeaning, or sexual nature;
5 (d) inappropriate gestures of a sexual nature;
6 (e) unwanted proposals for sexual activity;
7 (f) showing another individual photos or other images that are sexual-
8 ly explicit or are otherwise of a sexual nature; and
9 (g) undue attention to or questions about a person's sexual relation-
10 ships, sexual history, sexual orientation, or gender identity.
11 4. Reports required to be submitted pursuant to this section shall be
12 on forms and according to such procedures as the division shall estab-
13 lish.
14 5. (a) It shall be an unlawful discriminatory practice for any person
15 engaged in any activity to which this section applies to retaliate or
16 discriminate against an individual because the individual has:
17 (1) inquired about an employer's compliance with the provisions of
18 this section;
19 (2) complained about an employer's lack of compliance with the
20 provisions of this section; or
21 (3) reported an employer's lack of compliance with the provisions of
22 this section to the division or to another agency, including law
23 enforcement agencies.
24 (b) In addition to civil rights protections and remedies for retali-
25 ation available under this article, any employer who violates the
26 provisions of paragraph (a) of this subdivision shall be liable to any
27 affected employee or non-employee for:
28 (1) damages equal to the amount of any wages, salary, employment bene-
29 fits, or other compensation denied to or lost by such employee by reason
30 of the violation;
31 (2) the interest on the amount described in subparagraph one of this
32 paragraph calculated at the applicable Internal Revenue Service (IRS)
33 quarterly interest rates used to compute back pay;
34 (3) an additional amount as liquidated damages equal to the sum of the
35 amount described in subparagraph one and the interest described in
36 subparagraph two of this paragraph; and
37 (4) such equitable relief as may be appropriate, including but not
38 limited to, employment, reinstatement and promotion.
39 (c) An action to recover the damages or equitable relief prescribed in
40 paragraph (b) of this subdivision may be maintained against any employer
41 in any federal or state court of competent jurisdiction by any one or
42 more employees for and on behalf of:
43 (1) the affected employee or employees; or
44 (2) the affected employee or employees and other employees similarly
45 situated.
46 (d) The court in such an action shall, in addition to any judgment
47 awarded to the plaintiff, allow reasonable attorneys' fees, reasonable
48 expert witness fees, and other costs of the action to be paid by the
49 defendant.
50 6. (a) Nothing in this section shall be construed to interfere with
51 the right of an employee or non-employee to enter into a confidentiality
52 or non-disclosure agreement with his or her employer with respect to a
53 claim of discrimination on the basis of sex, including verbal and phys-
54 ical sexual harassment, the investigation of such a claim, or the out-
55 of-court settlement of such a claim.
S. 8740 3
1 (b) An employer may not use a confidentiality or non-disclosure agree-
2 ment described in paragraph (a) of this subdivision as a basis for fail-
3 ing or refusing to submit to the division the information required by
4 subdivisions one and two of this section.
5 (c) A confidentiality or non-disclosure agreement as described in
6 paragraph (a) of this subdivision shall not be construed as prohibiting
7 any party to such agreement from cooperating with law enforcement inves-
8 tigations into any claims of discrimination on the basis of sex, includ-
9 ing verbal and physical sexual harassment.
10 7. As used in this section:
11 (a) "employer" includes all employers within the state; and
12 (b) "non-employee" means a person other than an employee who provides
13 services pursuant to a contract or other agreement in the workplace,
14 including but not limited to, a vendor, consultant, free-lancer or
15 employee of a temporary or staffing agency.
16 § 3. Section 295 of the executive law is amended by adding a new
17 subdivision 17 to read as follows:
18 17. Annually, on or before April first, the division shall submit to
19 the governor and to the legislature, and shall make available to the
20 public on its website, a report containing the following information
21 relating to claims of discrimination on the basis of sex, including
22 verbal and physical sexual harassment:
23 (a) the number of settlements that were reported to the division as
24 defined by and reported pursuant to this section;
25 (b) the number of charges alleging discrimination on the basis of sex
26 that were reported to the division, from any source, including verbal
27 and physical sexual harassment made directly to the division; and
28 (c) a summary of any action taken by the division based upon any such
29 charges or complaints collected pursuant to this section, such as liti-
30 gation or settlements facilitated by the division pertaining to discrim-
31 ination on the basis of sex, including verbal and physical sexual
32 harassment, including a brief description of any outcome of such
33 actions.
34 § 4. This act shall take effect on the first of January next succeed-
35 ing the date upon which it shall have become a law. Effective immediate-
36 ly the addition, amendment and/or repeal of any rule or regulation
37 necessary for the implementation of this act on its effective date are
38 authorized to be made on or before such date.
