STATE OF NEW YORK
________________________________________________________________________
5976
2019-2020 Regular Sessions
IN ASSEMBLY
February 22, 2019
___________
Introduced by M. of A. WRIGHT, PEOPLES-STOKES, BARRON, BICHOTTE, COOK,
CRESPO, DE LA ROSA, GALEF, O'DONNELL, ROZIC, SEAWRIGHT, SIMON, TAYLOR,
L. ROSENTHAL, HUNTER, GLICK, ARROYO, ORTIZ, NIOU, GOTTFRIED, SIMOTAS,
WALLACE, OTIS, BRONSON, WEPRIN, FALL -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the state finance law, the civil practice law and rules,
the public officers law, the general obligations law, the labor law
and the executive law, in relation to discrimination
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. The section heading and paragraph (a) of subdivision 1 of
2 section 139-l of the state finance law, as added by section 1 of subpart
3 A of part KK of chapter 57 of the laws of 2018, are amended to read as
4 follows:
5 Statement on [sexual harassment] discrimination, in bids.
6 (a) Every bid hereafter made to the state or any public department or
7 agency thereof, where competitive bidding is required by statute, rule
8 or regulation, for work or services performed or to be performed or
9 goods sold or to be sold, shall contain the following statement
10 subscribed by the bidder and affirmed by such bidder as true under the
11 penalty of perjury:
12 "By submission of this bid, each bidder and each person signing on
13 behalf of any bidder certifies, and in the case of a joint bid each
14 party thereto certifies as to its own organization, under penalty of
15 perjury, that the bidder has and has implemented a written policy
16 addressing [sexual harassment] discrimination prevention in the work-
17 place and provides annual [sexual harassment] discrimination prevention
18 training to all of its employees. Such policy shall, at a minimum, meet
19 the requirements of section two hundred one-g of the labor law."
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10167-01-9
A. 5976 2
1 § 2. Paragraphs 2 and 3 of subdivision (a) of section 7515 of the
2 civil practice law and rules, as added by section 1 of subpart B of part
3 KK of chapter 57 of the laws of 2018, are amended to read as follows:
4 2. The term "prohibited clause" shall mean any clause or provision in
5 any contract which requires as a condition of the enforcement of the
6 contract or obtaining remedies under the contract that the parties
7 submit to mandatory arbitration to resolve any allegation or claim of
8 [an unlawful discriminatory practice of sexual harassment] discrimi-
9 nation, in violation of laws prohibiting discrimination, including but
10 not limited to, article fifteen of the executive law.
11 3. The term "mandatory arbitration clause" shall mean a term or
12 provision contained in a written contract which requires the parties to
13 such contract to submit any matter thereafter arising under such
14 contract to arbitration prior to the commencement of any legal action to
15 enforce the provisions of such contract and which also further provides
16 language to the effect that the facts found or determination made by the
17 arbitrator or panel of arbitrators in its application to a party alleg-
18 ing [an unlawful discriminatory practice based on sexual harassment]
19 discrimination, in violation of laws prohibiting discrimination, includ-
20 ing but not limited to, article fifteen of the executive law shall be
21 final and not subject to independent court review.
22 § 3. The section heading and subdivision 2 of section 17-a of the
23 public officers law, as added by section 1 of subpart C of part KK of
24 chapter 57 of the laws of 2018, are amended to read as follows:
25 Reimbursement of funds paid by state agencies and state entities for
26 the payment of awards adjudicated in [sexual harassment] discrimination
27 claims.
28 2. Notwithstanding any law to the contrary, any employee who has been
29 subject to a final judgment of personal liability for intentional wrong-
30 doing related to a claim of [sexual harassment] discrimination, in
31 violation of laws prohibiting discrimination, including but not limited
32 to, article fifteen of the executive law, shall reimburse any state
33 agency or entity that makes a payment to a plaintiff for an adjudicated
34 award based on a claim of [sexual harassment] discrimination, in
35 violation of laws prohibiting discrimination, including but not limited
36 to, article fifteen of the executive law resulting in a judgment, for
37 his or her proportionate share of such judgment. Such employee shall
38 personally reimburse such state agency or entity within ninety days of
39 the state agency or entity's payment of such award.
40 § 4. The section heading and subdivision 2 of section 18-a of the
41 public officers law, as added by section 2 of subpart C of part KK of
42 chapter 57 of the laws of 2018, are amended to read as follows:
43 Reimbursement of funds paid by a public entity for the payment of
44 awards adjudicated in [sexual harassment] discrimination claims.
45 2. Notwithstanding any law to the contrary, any employee who has been
46 subject to a final judgment of personal liability for intentional wrong-
47 doing related to a claim of [sexual harassment] discrimination, in
48 violation of laws prohibiting discrimination, including but not limited
49 to, article fifteen of the executive law, shall reimburse any public
50 entity that makes a payment to a plaintiff for an adjudicated award
51 based on a claim of [sexual harassment] discrimination, in violation of
52 laws prohibiting discrimination, including but not limited to, article
53 fifteen of the executive law resulting in a judgment, for his or her
54 proportionate share of such judgment. Such employee shall personally
55 reimburse such public entity within ninety days of the public entity's
56 payment of such award.
A. 5976 3
1 § 5. Section 5-336 of the general obligations law, as added by section
2 1 of subpart D of part KK of chapter 57 of the laws of 2018, is amended
3 to read as follows:
4 § 5-336. Nondisclosure agreements. Notwithstanding any other law to
5 the contrary, no employer, its officers or employees shall have the
6 authority to include or agree to include in any settlement, agreement or
7 other resolution of any claim, the factual foundation for which involves
8 [sexual harassment] discrimination, in violation of laws prohibiting
9 discrimination, including but not limited to, article fifteen of the
10 executive law, any term or condition that would prevent the disclosure
11 of the underlying facts and circumstances to the claim or action unless
12 the condition of confidentiality is the complainant's preference. Any
13 such term or condition must be provided to all parties, and the
14 complainant shall have twenty-one days to consider such term or condi-
15 tion. If after twenty-one days such term or condition is the
16 complainant's preference, such preference shall be memorialized in an
17 agreement signed by all parties. For a period of at least seven days
18 following the execution of such agreement, the complainant may revoke
19 the agreement, and the agreement shall not become effective or be
20 enforceable until such revocation period has expired.
21 § 6. Section 5003-b of the civil practice law and rules, as added by
22 section 2 of subpart D of part KK of chapter 57 of the laws of 2018, is
23 amended to read as follows:
24 § 5003-b. Nondisclosure agreements. Notwithstanding any other law to
25 the contrary, for any claim or cause of action, whether arising under
26 common law, equity, or any provision of law, the factual foundation for
27 which involves [sexual harassment] discrimination, in violation of laws
28 prohibiting discrimination, including but not limited to, article
29 fifteen of the executive law, in resolving, by agreed judgment, stipu-
30 lation, decree, agreement to settle, assurance of discontinuance or
31 otherwise, no employer, its officer or employee shall have the authority
32 to include or agree to include in such resolution any term or condition
33 that would prevent the disclosure of the underlying facts and circum-
34 stances to the claim or action unless the condition of confidentiality
35 is the plaintiff's preference. Any such term or condition must be
36 provided to all parties, and the plaintiff shall have twenty-one days to
37 consider such term or condition. If after twenty-one days such term or
38 condition is the plaintiff's preference, such preference shall be memo-
39 rialized in an agreement signed by all parties. For a period of at least
40 seven days following the execution of such agreement, the plaintiff may
41 revoke the agreement, and the agreement shall not become effective or be
42 enforceable until such revocation period has expired.
43 § 7. Section 201-g of the labor law, as added by section 1 of subpart
44 E of part KK of chapter 57 of the laws of 2018, is amended to read as
45 follows:
46 § 201-g. Prevention of [sexual harassment] discrimination. 1. The
47 department shall consult with the division of human rights to create and
48 publish a model [sexual harassment] discrimination prevention guidance
49 document and [sexual harassment prevention] discrimination prevention
50 policy that employers may utilize in their adoption of [a sexual harass-
51 ment prevention] the policy required by this section. For purposes of
52 this section, "discrimination" shall mean unlawful discriminatory prac-
53 tice, as defined in section two hundred ninety-six of the executive law
54 and/or discrimination or harassment based on race, color, sex, national
55 origin, creed, sexual orientation, gender identity or expression, age,
A. 5976 4
1 disability, military status, familial status, marital status, predispos-
2 ing genetic characteristics, or domestic violence victim status.
3 a. Such model [sexual harassment prevention] discrimination prevention
4 policy shall: (i) prohibit [sexual harassment] discrimination consistent
5 with guidance issued by the department in consultation with the division
6 of human rights and provide examples of prohibited conduct that would
7 constitute unlawful [sexual harassment] discrimination; (ii) include but
8 not be limited to information concerning the federal and state statutory
9 provisions concerning [sexual harassment] discrimination and remedies
10 available to victims of [sexual harassment] discrimination and a state-
11 ment that there may be applicable local laws; (iii) include a standard
12 complaint form; (iv) include a procedure for the timely and confidential
13 investigation of complaints and ensure due process for all parties; (v)
14 inform employees of their rights of redress and all available forums for
15 adjudicating [sexual harassment] discrimination complaints administra-
16 tively and judicially; (vi) clearly state that [sexual harassment]
17 discrimination is considered a form of employee misconduct and that
18 sanctions will be enforced against individuals engaging in [sexual
19 harassment] discrimination and against supervisory and managerial
20 personnel who knowingly allow such behavior to continue; and (vii)
21 clearly state that retaliation against individuals who complain of
22 [sexual harassment] discrimination or who testify or assist in any
23 proceeding under the law is unlawful.
24 b. Every employer shall adopt the model [sexual harassment] discrimi-
25 nation prevention policy promulgated pursuant to this subdivision or
26 establish a [sexual harassment] discrimination prevention policy to
27 prevent [sexual harassment] discrimination that equals or exceeds the
28 minimum standards provided by such model [sexual harassment prevention]
29 policy. Such [sexual harassment prevention] policy shall be provided to
30 all employees in writing. Such model [sexual harassment prevention]
31 policy shall be publicly available and posted on the websites of both
32 the department and the division of human rights.
33 2. The department shall consult with the division of human rights and
34 produce a model [sexual harassment] discrimination prevention training
35 program to prevent [sexual harassment] discrimination in the workplace.
36 a. Such model [sexual harassment prevention] training program shall be
37 interactive and include: (i) an explanation of [sexual harassment]
38 discrimination consistent with guidance issued by the department in
39 consultation with the division of human rights; (ii) examples of conduct
40 that would constitute unlawful [sexual harassment] discrimination; (iii)
41 information concerning the federal and state statutory provisions
42 concerning [sexual harassment] discrimination and remedies available to
43 victims of [sexual harassment] discrimination; and (iv) information
44 concerning employees' rights of redress and all available forums for
45 adjudicating complaints.
46 b. The department shall include information in such model [sexual
47 harassment prevention] training program addressing conduct by supervi-
48 sors and any additional responsibilities for such supervisors.
49 c. Every employer shall utilize [the] such model [sexual harassment
50 prevention] training program pursuant to this subdivision or establish a
51 training program for employees to prevent [sexual harassment] discrimi-
52 nation that equals or exceeds the minimum standards provided by such
53 model training. Such [sexual harassment prevention] training program
54 shall be provided to all employees on an annual basis.
A. 5976 5
1 3. The commissioner may promulgate regulations as he or she deems
2 necessary for the purposes of carrying out the provisions of this
3 section.
4 § 8. Section 296-d of the executive law, as added by section 1 of
5 subpart F of part KK of chapter 57 of the laws of 2018, is amended to
6 read as follows:
7 § 296-d. [Sexual harassment] Discrimination relating to non-employees.
8 It shall be an unlawful discriminatory practice for an employer to
9 permit [sexual harassment] discrimination or harassment based on race,
10 color, sex, national origin, creed, sexual orientation, gender identity
11 or expression, age, disability, military status, familial status, mari-
12 tal status, predisposing genetic characteristics, or domestic violence
13 victim status of non-employees in its workplace. An employer may be
14 held liable to a non-employee who is a contractor, subcontractor,
15 vendor, consultant or other person providing services pursuant to a
16 contract in the workplace or who is an employee of such contractor,
17 subcontractor, vendor, consultant or other person providing services
18 pursuant to a contract in the workplace, with respect to [sexual harass-
19 ment] discrimination or harassment based on race, color, sex, national
20 origin, creed, sexual orientation, gender identity or expression, age,
21 disability, military status, familial status, marital status, predispos-
22 ing genetic characteristics, or domestic violence victim status, when
23 the employer, its agents or supervisors knew or should have known that
24 such non-employee was subjected to [sexual harassment] discrimination or
25 harassment based on race, color, sex, national origin, creed, sexual
26 orientation, gender identity or expression, age, disability, military
27 status, familial status, marital status, predisposing genetic character-
28 istics, or domestic violence victim status in the employer's workplace,
29 and the employer failed to take immediate and appropriate corrective
30 action. In reviewing such cases involving non-employees, the extent of
31 the employer's control and any other legal responsibility which the
32 employer may have with respect to the conduct of the harasser shall be
33 considered.
34 § 9. Subdivision 5 of section 292 of the executive law, as amended by
35 chapter 363 of the laws of 2015, is amended to read as follows:
36 5. The term "employer" [does not include any employer with fewer than
37 four persons in his or her employ except as set forth in section two
38 hundred ninety-six-b of this article, provided, however, that in the
39 case of an action for discrimination based on sex pursuant to subdivi-
40 sion one of section two hundred ninety-six of this article, with respect
41 to sexual harassment only, the term "employer"] shall include all
42 employers within the state.
43 § 10. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
44 vision 9 as amended by chapter 359 of the laws of 1969, are amended to
45 read as follows:
46 9. Bring and prosecute or defend upon request of the [industrial]
47 commissioner of labor or the state division of human rights, any civil
48 action or proceeding, the institution or defense of which in his judg-
49 ment is necessary for effective enforcement of the laws of this state
50 against discrimination by reason of age, race, sex, creed, color [or],
51 national origin, sexual orientation, gender identity or expression,
52 military status, disability, predisposing genetic characteristics, fami-
53 lial status, marital status, or domestic violence victim status, or for
54 enforcement of any order or determination of such commissioner or divi-
55 sion made pursuant to such laws.
A. 5976 6
1 10. Prosecute every person charged with the commission of a criminal
2 offense in violation of any of the laws of this state against discrimi-
3 nation because of age, race, sex, creed, color, [or] national origin,
4 sexual orientation, gender identity or expression, military status,
5 disability, predisposing genetic characteristics, familial status, mari-
6 tal status, or domestic violence victim status, in any case where in his
7 judgment, because of the extent of the offense, such prosecution cannot
8 be effectively carried on by the district attorney of the county wherein
9 the offense or a portion thereof is alleged to have been committed, or
10 where in his judgment the district attorney has erroneously failed or
11 refused to prosecute. In all such proceedings, the attorney-general may
12 appear in person or by his deputy or assistant before any court or any
13 grand jury and exercise all the powers and perform all the duties in
14 respect of such actions or proceedings which the district attorney would
15 otherwise be authorized or required to exercise or perform.
16 § 11. Severability clause. If any clause, sentence, paragraph, subdi-
17 vision, section or subpart of this act shall be adjudged by any court of
18 competent jurisdiction to be invalid, such judgment shall not affect,
19 impair, or invalidate the remainder thereof, but shall be confined in
20 its operation to the clause, sentence, paragraph, subdivision, section
21 or subject thereof directly involved in the controversy in which such
22 judgment shall have been rendered. It is hereby declared to be the
23 intent of the legislature that this act would have been enacted even if
24 such invalid provisions had not been included herein.
25 § 12. This act shall take effect immediately; provided however:
26 (a) section one of this act shall take effect on the first of January
27 next succeeding the date on which it shall have become a law;
28 (b) sections two, five, and six of this act shall take effect on the
29 ninetieth day after they shall have become a law; and
30 (c) section seven of this act shall take effect on the one hundred
31 eightieth day after it shall have become a law.
32 (d) effective immediately, the addition, amendment and/or repeal of
33 any rule or regulation necessary for the implementation of this act on
34 its effective date are authorized and directed to be made and completed
35 on or before such effective date.