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A08421 Summary:

A08421 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A8421
 
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; to amend the general obli-
gations law, in relation to nondisclosure agreements; to amend the civil
practice law and rules and the executive law, in relation to discrimi-
nation; to amend the labor law, in relation to requiring employers to
provide employees notice of their sexual harassment prevention training
program in writing in English and in employees' primary languages; to
amend the executive law, in relation to extending the statute of limita-
tions for claim resulting from unlawful or discriminatory practices
constituting sexual harassment to three years; to amend the labor law,
in relation to the model sexual harassment prevention guidance document
and sexual harassment prevention policy; and directing the commissioner
of labor to conduct a study on strengthening sexual harassment
prevention laws
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
This bill increases protections to employees of all protected classes
who have been subject to discriminatory harassment in the workplace.
 
 
SUMMARY OF PROVISIONS:
 
Section 1 provides that the Human Rights Law covers all employers in the
state, including the state and all political subdivisions thereof, for
all forms of discrimination and harassment.
 
Section 1-a This section further defines "private employer" to include
any person, company, corporation, labor organization or association, and
not any governmental entity.
 
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 clarifies the basis for unlawful discriminatory harassment
relating to domestic workers.
 
Section 4 addresses circumstances under which employers are liable to
non-employees in the workplace, and extends liability for all forms of
unlawful discriminatory conduct.
 
Section 5 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 6 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 7 prohibits mandatory arbitration clauses related to discrimi-
nation. Section 8 prohibits non-disparagement provisions in employment
contracts from preventing employees from disclosing factual information
related to future claims of discrimination with law enforcement,
enforcement agencies, or private counsel, and prohibits non-disclosure
agreements from prohibiting the complainant from initiating, testifying,
assisting, complying, or participating in an investigation conducted by
any government agency, or disclosing facts necessary to receiving public
benefits.
 
Section 9 prohibits non-disclosure agreements from prohibiting the
disclosure of the underlying facts and circumstances to the claim or
action unless the condition of confidentiality is in the plaintiff's
preference in all discrimination cases.
 
Section 10 expands the powers of the Attorney General to prosecute cases
of discrimination based on all protected classes.
 
Section 11 provides that the Commissioner of Labor, in consultation with
the Commissioner of Human Rights shall conduct a study that reviews the
requirements for employers to provide a sexual harassment training and
policy, the scope of workplace discrimination made unlawful by state and
federal law, engagement with stakeholders on effective tools to remedi-
ate workplace discrimination, and an analysis on the efficacy of requir-
ing further training in reducing all forms of workplace discrimination.
 
Section 12 requires employers to provide their employees with a notice
containing their sexual harassment prevention policy and information
presented at their sexual harassment prevention training program both in
English and the employee's identified primary language.
 
Section 13 extends the time frame within which victims of sexual harass-
ment in the workplace must file administrative complaints with the Divi-
sion of Human Rights from one year to three years.
 
Section 14 requires that every four years the model sexual harassment
prevention guidance document and sexual harassment policy will be
reviewed and updated as necessary.
 
Section 15 contains the severability clause of this legislation.
 
Section 16 sets forth the effective date.
 
 
JUSTIFICATION:
 
During the year 2017 sexual harassment became a national issue with
dozens of high profile incidents finding the light of day and hundreds
of protests sweeping the nation. As a result the "Me Too" movement and
"Times Up" movement were formed to combat sexual harassment and discrim-
ination it all of its ugly forms. It is more imperative than ever that
the work of these movements continue and translate into actual policy
and change. The time for complacency is no more. In 2018, the Legisla-
ture enacted a number of measures to combat sexual harassment in the
workplace, including mandating that all employers in New York State have
a sexual harassment policy, employee training, and a clear complaint and
investigation process. This legislation builds off of what was done in
2018 to enact further reforms for sexual harassment, and extends those
protections to other protected classes in the employment context. 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 catego-
ries, longer statutes of limitations, attorney's fees and punitive
damages for victims, and a medley of reforms to help disclose to employ-
ees and victims their rights in the workplace and under State law. It is
time for New York State law to abandon the protection of those who would
discriminate and sexually harass in the workplace and recognize and
serve victims of discrimination.
 
 
PRIOR LEGISLATIVE HISTORY:
 
New bill.
 
 
FISCAL IMPLICATIONS:
 
To be determined
 
 
EFFECTIVE DATE:
This act shall take effect immediately, provided, however: Sections one
of this act shall take effect on the one hundred eightieth day after it
shall have become a law. Sections one-a, two, three, four, five, seven,
eight and nine of this act shall take effect on the sixtieth day after
it shall have become a law. Section thirteen of this act shall take
effect one year after it shall have become a law.  Sections one, one-a,
two, three, four, five, six and thirteen shall only apply to claims
filed under such sections on or after the effective date of such
sections. Effective immediately, the addition, amendment and/or repeal
of any rule or regulation necessary for the implementation of this act
on its effective date are authorized and directed to be made and
completed on or before such effective date.