Relates to increased protections for protected classes, special protections for employees who have been sexually harassed, allowing attorney fees for all protected classes, allowing punitive damages, and eliminates the Faragher/Ellerth defense.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7083A
SPONSOR: Simotas TITLE OF BILL: An act to amend the executive law, in relation to
increased protections for protected classes and special protections for
employees who have been sexually harassed
PURPOSE OR GENERAL IDEA OF BILL:
This bill increases protections to all protected classes instead of
giving additional or special protections to employees who have been
sexually harassed.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 covers all employers in the state, including the state and all
political subdivisions thereof, for all forms of discrimination and
harassment and expands protections to domestic service workers. This
section also clarifies that discrimination need only be "a motivating
factor."
Section 2 extends protection to discriminatory and to retaliatory
harassment based on all protected categories; eliminates the "severe or
pervasive" standard from discriminatory and retaliatory harassment
cases. This section also functions to eliminate part of the
Faragher/Ellerth defense.
Section 3 Sets out the standard for liability of the employer for
discriminatory practices of its employees or agents, sets out the stand-
ard for liability of employer, licensing agency, employment agency or
labor organization for the discriminatory practice(s) committed by its
independent contractors. It allows employers' actions to be considered
in mitigation of the amount of civil penalties or punitive damages and
sets out standards for joint and several liability of individual employ-
ees.
Section 4 clarifies the basis for unlawful discriminatory practices
relating to domestic workers.
Section 5 addresses circumstances under which employers are liable to
non-employees in the workplace, and extends liability for all forms of
unlawful discriminatory conduct.
Section 6 extends punitive damages to employment discrimination actions,
without limitation on the amount, to cases brought before the State
Division of Human Rights. It also provides for punitive damages and
provides for attorneys' fees to prevailing plaintiffs in all employment
discrimination cases, not just those based on sex discrimination.
Section 7 adds language to beginning of the Construction section to
explain that the statute is to be construed liberally, regardless of how
federal civil and human rights laws are construed.
Section 8 provides the effective date.
JUSTIFICATION:
Despite our reputation as a leader in progressive reform, New York State
is behind the rest of the country when it comes to its statutes regard-
ing discrimination in the workplace, including, but not limited to,
sexual harassment.
Upon making the wrenching decision to come forward and seek justice for
the wrongdoing they have been subject to, working individuals in the
State who have experienced egregious and debilitating forms of harass-
ment have to overcome significant and unwarranted legal barriers. One
such example is the Faragher/Ellerth defense that enables an employer to
avoid liability where supervisors sexually harass employees, but no
"tangible employment action" follows. This and the other legal dispari-
ties surrounding discrimination in the workplace addressed in this
particular bill gives workers in the State the impression that the law,
as it is currently written, exists to protect institutions and employ-
ers, not its millions of vulnerable employees.
In conjunction with the newly enacted legislation coming out of the
Women's Equality Agenda budget items introduced in 2018, the passage and
signage of this bill will bring the State up to speed with widely
accepted reforms, such as eliminating the "severe or pervasive" standard
applied to sexual harassment cases and harassment based on all protected
categories.
It is time for New York State law to recognize and serve victims of
discrimination, not protect the persistent and abhorrent behavior of
supervisors, co-workers, top executives, board members, etc. in almost
any industry one could think of
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law; provided, however that the amendments made to section
296-b of the executive law made by section four of this act shall take
effect on the same date and in the same manner as chapter 8 of the laws
of 2019 takes effect.
STATE OF NEW YORK
________________________________________________________________________
7083--A
2019-2020 Regular Sessions
IN ASSEMBLY
April 5, 2019
___________
Introduced by M. of A. SIMOTAS, ROZIC, DE LA ROSA, SIMON, QUART, LAVINE,
MOSLEY, GOTTFRIED, PAULIN, ORTIZ, M. G. MILLER, BRAUNSTEIN, O'DONNELL,
D'URSO, ZEBROWSKI, WEPRIN -- read once and referred to the Committee
on Governmental Operations -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the executive law, in relation to increased protections
for protected classes and special protections for employees who have
been sexually harassed
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 5 and 6 of section 292 of the executive law,
2 subdivision 5 as amended by chapter 363 of the laws of 2015 and subdivi-
3 sion 6 as amended by chapter 481 of the laws of 2010, are amended and a
4 new subdivision 37 is added to read as follows:
5 5. The term "employer" [does not include any employer with fewer than
6 four persons in his or her employ except as set forth in section two
7 hundred ninety-six-b of this article, provided, however, that in the
8 case of an action for discrimination based on sex pursuant to subdivi-
9 sion one of section two hundred ninety-six of this article, with respect
10 to sexual harassment only, the term "employer"] shall include all
11 employers within the state, including the state and all political subdi-
12 visions thereof.
13 6. The term "employee" in this article does not include any individual
14 employed by his or her parents, spouse or child, [or in the domestic
15 service of any person] except as set forth in section two hundred nine-
16 ty-six-b of this [title] article.
17 37. The terms "because of" and "because" in disparate treatment cases
18 means the unlawful motive was a motivating factor. Nothing in this defi-
19 nition is intended to preclude or limit use of the disparate impact
20 method of proving liability.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09983-02-9
A. 7083--A 2
1 § 2. Subdivision 1 of section 296 of the executive law is amended by
2 adding two new paragraphs (h) and (i) to read as follows:
3 (h) For an employer, licensing agency, employment agency, or labor
4 organization to subject any individual to discriminatory harassment
5 because of the age, race, creed, color, national origin, sexual orien-
6 tation, gender identity or expression, military status, sex, disability,
7 predisposing genetic characteristics, familial status, marital status,
8 domestic violence victim status of such individual, or because he or she
9 has opposed any practices forbidden under this article or because he or
10 she has filed a complaint, testified or assisted in any proceeding under
11 this article, regardless of whether such harassment or hostile work
12 environment is severe or pervasive. Such discriminatory or retaliatory
13 harassment constitutes an unlawful discriminatory practice under this
14 subdivision unless the defendant pleads and proves that the harassing
15 conduct does not rise above the level of petty slights or trivial incon-
16 veniences.
17 (i) The aggrieved person's failure to complain about, or utilize any
18 particular complaint procedure to complain about discriminatory harass-
19 ment or any other unlawful discriminatory practices under this article
20 is not a defense, or partial defense, to liability under this article.
21 § 3. Section 296 of the executive law is amended by adding five new
22 subdivisions 1-b, 1-c, 1-d, 1-e and 1-f to read as follows:
23 1-b. An employer, licensing agency, employment agency, or labor organ-
24 ization shall be liable for an unlawful discriminatory practice based
25 upon the conduct of an employee or agent which is in violation of subdi-
26 vision one of this section only where:
27 (a) The employee or agent exercised managerial or supervisory respon-
28 sibility; or
29 (b) The employer, licensing agency, employment agency or labor organ-
30 ization knew of the employee's or agent's discriminatory conduct, and
31 acquiesced in such conduct or failed to take immediate and/or appropri-
32 ate corrective action; an employer licensing agency, employment agency,
33 or labor organization shall be deemed to have knowledge of an employee's
34 or agent's discriminatory conduct where that conduct was known by anoth-
35 er employee or agent who exercised managerial or supervisory responsi-
36 bility; or
37 (c) The employer, licensing agency, employment agency, or labor organ-
38 ization should have known of the employee's or agent's discriminatory
39 conduct and failed to exercise reasonable diligence to prevent such
40 discriminatory conduct.
41 1-c. An employer, licensing agency, employment agency, or labor organ-
42 ization shall be liable for an unlawful discriminatory practice commit-
43 ted by an independent contractor, other than an agent of such employer,
44 licensing agency, employment agency, or labor organization's business
45 enterprise only where such discriminatory conduct was committed in the
46 course of such employment or engagement and the employer, licensing
47 agency, employment agency, or labor organization had actual knowledge of
48 and acquiesced in such conduct.
49 1-d. Where liability of an employer, licensing agency, employment
50 agency, or labor organization has been established pursuant to subdivi-
51 sion one-b of this section, and is based solely on the conduct of an
52 employee, agent or independent contractor, the employer shall be permit-
53 ted to plead and prove that with respect to the discriminatory conduct
54 for which it was found liable it had:
55 (a) Established and complied with policies, programs and procedures
56 for the prevention and detection of unlawful discriminatory practices by
A. 7083--A 3
1 employees, agents and persons employed as independent contractors,
2 including but not limited to:
3 (i) a meaningful and responsive procedure for investigating complaints
4 of discriminatory practices by employees, agents and persons employed as
5 independent contractors and for taking appropriate action against those
6 persons who are found to have engaged in such practices;
7 (ii) a firm policy against such practices which is effectively commu-
8 nicated to employees, agents and persons employed as independent
9 contractors;
10 (iii) a program to educate employees and agents about unlawful discri-
11 minatory practices under local, state, and federal law; and
12 (iv) procedures for the supervision of employees and agents and for
13 the oversight of persons employed as independent contractors specif-
14 ically directed at the prevention and detection of such practices; and
15 (b) A record of no, or relatively few, prior incidents of discrimina-
16 tory conduct by such employee, agent or person employed as an independ-
17 ent contractor or other employees, agents or persons employed as inde-
18 pendent contractors.
19 1-e. The demonstration of any or all of the factors in subdivision
20 one-d of this section, in addition to any other relevant factors, shall
21 be considered in mitigation of the amount of civil penalties to be
22 imposed by the division of human rights pursuant to this chapter or in
23 mitigation of civil penalties or punitive damages which may be imposed
24 pursuant to this article and shall be among the factors considered in
25 determining an employer's liability under paragraph (c) of subdivision
26 one-b of this section.
27 1-f. An employee or agent of an employer, licensing agency, employment
28 agency, or labor organization is jointly and severally individually
29 liable with their employer, licensing agency, employment agency, or
30 labor organization for an unlawful discriminatory practice if they exer-
31 cised managerial or supervisory responsibility for the employer, licens-
32 ing agency, employment agency, or labor organization over employees,
33 agents, or independent contractors of the employer, such that they had
34 authority to direct the employee, agent, or independent contractor's
35 work activities or had the power to do more than carry out personnel
36 decisions made by others. Satisfaction of the requirements of this
37 subdivision is sufficient but not necessary to satisfy the requirements
38 of paragraph (a) of subdivision one-b of this section.
39 § 4. Paragraph (b) of subdivision 2 of section 296-b of the executive
40 law, as amended by chapter 8 of the laws of 2019, is amended to read as
41 follows:
42 (b) Subject a domestic worker to unwelcome harassment based on
43 [gender, race, religion, sexual orientation, gender identity or
44 expression or national origin] his or her age, race, creed, color,
45 national origin, sexual orientation, military status, sex, disability,
46 predisposing genetic characteristics, familial status, marital status or
47 domestic violence victim status, where such harassment has the purpose
48 or effect of unreasonably interfering with an individual's work perform-
49 ance by creating an intimidating, hostile, or offensive working environ-
50 ment.
51 § 5. Section 296-d of the executive law, as added by section 1 of
52 subpart F of part KK of chapter 57 of the laws of 2018, is amended to
53 read as follows:
54 § 296-d. [Sexual harassment] Unlawful discriminatory practices relat-
55 ing to non-employees. It shall be an unlawful discriminatory practice
56 for an employer to permit [sexual harassment of] unlawful discrimination
A. 7083--A 4
1 against non-employees in its workplace. An employer may be held liable
2 to a non-employee who is a contractor, subcontractor, vendor, consultant
3 or other person providing services pursuant to a contract in the work-
4 place or who is an employee of such contractor, subcontractor, vendor,
5 consultant or other person providing services pursuant to a contract in
6 the workplace, with respect to [sexual harassment] an unlawful discrimi-
7 natory practice, when the employer, its agents or supervisors knew or
8 should have known that such non-employee was subjected to [sexual
9 harassment] an unlawful discriminatory practice in the employer's work-
10 place, and the employer failed to take immediate and appropriate correc-
11 tive action. In reviewing such cases involving non-employees, the extent
12 of the employer's control and any other legal responsibility which the
13 employer may have with respect to the conduct of the [harasser] person
14 who engaged in the unlawful discriminatory practice shall be considered.
15 § 6. Subdivision 1, paragraph c of subdivision 4 and subdivisions 9
16 and 10 of section 297 of the executive law, subdivision 1 and paragraph
17 c of subdivision 4 as amended by chapter 166 of the laws of 2000,
18 subparagraph (vi) of paragraph c of subdivision 4 as amended by section
19 1 of part AA of chapter 57 of the laws of 2009, subdivision 9 as amended
20 by section 16 of part D of chapter 405 of the laws of 1999 and subdivi-
21 sion 10 as amended by chapter 364 of the laws of 2015, are amended to
22 read as follows:
23 1. Any person claiming to be aggrieved by an unlawful discriminatory
24 practice may, by himself or herself or his or her attorney-at-law, make,
25 sign and file with the division a verified complaint in writing which
26 shall state the name and address of the person alleged to have committed
27 the unlawful discriminatory practice complained of and which shall set
28 forth the particulars thereof and contain such other information as may
29 be required by the division. The commissioner of labor or the attorney
30 general, or the chair of the commission on quality of care for the
31 mentally disabled, or the division on its own motion may, in like
32 manner, make, sign and file such complaint. In connection with the
33 filing of such complaint, the attorney general is authorized to take
34 proof, issue subpoenas and administer oaths in the manner provided in
35 the civil practice law and rules. Any employer whose employees, or some
36 of them, refuse or threaten to refuse to cooperate with the provisions
37 of this article, may file with the division a verified complaint asking
38 for assistance by conciliation or other remedial action.
39 c. Within one hundred eighty days after the commencement of such hear-
40 ing, a determination shall be made and an order served as hereinafter
41 provided. If, upon all the evidence at the hearing, the commissioner
42 shall find that a respondent has engaged in any unlawful discriminatory
43 practice as defined in this article, the commissioner shall state find-
44 ings of fact and shall issue and cause to be served on such respondent
45 an order, based on such findings and setting them forth, and including
46 such of the following provisions as in the judgment of the division will
47 effectuate the purposes of this article: (i) requiring such respondent
48 to cease and desist from such unlawful discriminatory practice; (ii)
49 requiring such respondent to take such affirmative action, including
50 (but not limited to) hiring, reinstatement or upgrading of employees,
51 with or without back pay, restoration to membership in any respondent
52 labor organization, admission to or participation in a guidance program,
53 apprenticeship training program, on-the-job training program or other
54 occupational training or retraining program, the extension of full,
55 equal and unsegregated accommodations, advantages, facilities and privi-
56 leges to all persons, granting the credit which was the subject of any
A. 7083--A 5
1 complaint, evaluating applicants for membership in a place of accommo-
2 dation without discrimination based on race, creed, color, national
3 origin, sex, disability or marital status, and without retaliation or
4 discrimination based on opposition to practices forbidden by this arti-
5 cle or filing a complaint, testifying or assisting in any proceeding
6 under this article; (iii) awarding of compensatory damages to the person
7 aggrieved by such practice; (iv) awarding of punitive damages, in cases
8 of employment discrimination to the person aggrieved by such practice,
9 and, in cases of housing discrimination [only], with damages in housing
10 discrimination cases in an amount not to exceed ten thousand dollars, to
11 the person aggrieved by such practice; (v) requiring payment to the
12 state of profits obtained by a respondent through the commission of
13 unlawful discriminatory acts described in subdivision three-b of section
14 two hundred ninety-six of this article; and (vi) assessing civil fines
15 and penalties, in an amount not to exceed fifty thousand dollars, to be
16 paid to the state by a respondent found to have committed an unlawful
17 discriminatory act, or not to exceed one hundred thousand dollars to be
18 paid to the state by a respondent found to have committed an unlawful
19 discriminatory act which is found to be willful, wanton or malicious;
20 (vii) requiring a report of the manner of compliance. If, upon all the
21 evidence, the commissioner shall find that a respondent has not engaged
22 in any such unlawful discriminatory practice, he or she shall state
23 findings of fact and shall issue and cause to be served on the complain-
24 ant an order based on such findings and setting them forth dismissing
25 the said complaint as to such respondent. A copy of each order issued by
26 the commissioner shall be delivered in all cases to the attorney gener-
27 al, the secretary of state, if he or she has issued a license to the
28 respondent, and such other public officers as the division deems proper,
29 and if any such order issued by the commissioner concerns a regulated
30 creditor, the commissioner shall forward a copy of any such order to the
31 superintendent. A copy of any complaint filed against any respondent who
32 has previously entered into a conciliation agreement pursuant to para-
33 graph a of subdivision three of this section or as to whom an order of
34 the division has previously been entered pursuant to this paragraph
35 shall be delivered to the attorney general, to the secretary of state if
36 he or she has issued a license to the respondent and to such other
37 public officers as the division deems proper, and if any such respondent
38 is a regulated creditor, the commissioner shall forward a copy of any
39 such complaint to the superintendent.
40 9. Any person claiming to be aggrieved by an unlawful discriminatory
41 practice shall have a cause of action in any court of appropriate juris-
42 diction for damages, including[, in cases of housing discrimination
43 only,] punitive damages, and such other remedies as may be appropriate,
44 including any civil fines and penalties provided in subdivision four of
45 this section, unless such person had filed a complaint hereunder or with
46 any local commission on human rights, or with the superintendent pursu-
47 ant to the provisions of section two hundred ninety-six-a of this chap-
48 ter, provided that, where the division has dismissed such complaint on
49 the grounds of administrative convenience, on the grounds of untimeli-
50 ness, or on the grounds that the election of remedies is annulled, such
51 person shall maintain all rights to bring suit as if no complaint had
52 been filed with the division. At any time prior to a hearing before a
53 hearing examiner, a person who has a complaint pending at the division
54 may request that the division dismiss the complaint and annul his or her
55 election of remedies so that the human rights law claim may be pursued
56 in court, and the division may, upon such request, dismiss the complaint
A. 7083--A 6
1 on the grounds that such person's election of an administrative remedy
2 is annulled. Notwithstanding subdivision (a) of section two hundred four
3 of the civil practice law and rules, if a complaint is so annulled by
4 the division, upon the request of the party bringing such complaint
5 before the division, such party's rights to bring such cause of action
6 before a court of appropriate jurisdiction shall be limited by the stat-
7 ute of limitations in effect in such court at the time the complaint was
8 initially filed with the division. Any party to a housing discrimination
9 complaint shall have the right within twenty days following a determi-
10 nation of probable cause pursuant to subdivision two of this section to
11 elect to have an action commenced in a civil court, and an attorney
12 representing the division of human rights will be appointed to present
13 the complaint in court, or, with the consent of the division, the case
14 may be presented by complainant's attorney. A complaint filed by the
15 equal employment opportunity commission to comply with the requirements
16 of 42 USC 2000e-5(c) and 42 USC 12117(a) and 29 USC 633(b) shall not
17 constitute the filing of a complaint within the meaning of this subdivi-
18 sion. No person who has initiated any action in a court of competent
19 jurisdiction or who has an action pending before any administrative
20 agency under any other law of the state based upon an act which would be
21 an unlawful discriminatory practice under this article, may file a
22 complaint with respect to the same grievance under this section or under
23 section two hundred ninety-six-a of this article.
24 10. With respect to all cases of housing discrimination and housing
25 related credit discrimination in an action or proceeding at law under
26 this section or section two hundred ninety-eight of this article, the
27 commissioner or the court may in its discretion award reasonable attor-
28 ney's fees to any prevailing or substantially prevailing party; and with
29 respect to a claim of [employment or] credit discrimination where sex is
30 a basis of such discrimination, and with respect to a claim in all cases
31 of employment discrimination in an action or proceeding at law under
32 this section or section two hundred ninety-eight of this article, the
33 commissioner or the court [may in its discretion] shall award reasonable
34 attorney's fees attributable to such claim to any prevailing party;
35 provided, however, that a prevailing respondent or defendant in order to
36 recover such reasonable attorney's fees must make a motion requesting
37 such fees and show that the action or proceeding brought was frivolous;
38 and further provided that in a proceeding brought in the division of
39 human rights, the commissioner may only award attorney's fees as part of
40 a final order after a public hearing held pursuant to subdivision four
41 of this section. In no case shall attorney's fees be awarded to the
42 division, nor shall the division be liable to a prevailing or substan-
43 tially prevailing party for attorney's fees, except in a case in which
44 the division is a party to the action or the proceeding in the divi-
45 sion's capacity as an employer. In cases of employment discrimination, a
46 respondent shall only be liable for attorney's fees under this subdivi-
47 sion if the respondent has been found liable for having committed an
48 unlawful discriminatory practice. In order to find the action or
49 proceeding to be frivolous, the court or the commissioner must find in
50 writing one or more of the following:
51 (a) the action or proceeding was commenced, used or continued in bad
52 faith, solely to delay or prolong the resolution of the litigation or to
53 harass or maliciously injure another; or
54 (b) the action or proceeding was commenced or continued in bad faith
55 without any reasonable basis and could not be supported by a good faith
56 argument for an extension, modification or reversal of existing law. If
A. 7083--A 7
1 the action or proceeding was promptly discontinued when the party or
2 attorney learned or should have learned that the action or proceeding
3 lacked such a reasonable basis, the court may find that the party or the
4 attorney did not act in bad faith.
5 § 7. Section 300 of the executive law, as amended by chapter 166 of
6 the laws of 2000, is amended to read as follows:
7 § 300. Construction. The provisions of this article shall be construed
8 liberally for the accomplishment of the remedial purposes thereof,
9 regardless of whether federal civil and human rights laws, including
10 those laws with provisions worded comparably to the provisions of this
11 article, have been so construed. Exceptions to and exemptions from the
12 provisions of this article shall be construed narrowly in order to maxi-
13 mize deterrence of discriminatory conduct. Nothing contained in this
14 article shall be deemed to repeal any of the provisions of the civil
15 rights law or any other law of this state relating to discrimination
16 [because of race, creed, color or national origin]; but, as to acts
17 declared unlawful by section two hundred ninety-six of this article, the
18 procedure herein provided shall, while pending, be exclusive; and the
19 final determination therein shall exclude any other action, civil or
20 criminal, based on the same grievance of the individual concerned. If
21 such individual institutes any action based on such grievance without
22 resorting to the procedure provided in this article, he or she may not
23 subsequently resort to the procedure herein.
24 § 8. This act shall take effect on the thirtieth day after it shall
25 have become a law; provided, however that the amendments made to section
26 296-b of the executive law made by section four of this act shall take
27 effect on the same date and in the same manner as chapter 8 of the laws
28 of 2019 takes effect.
