Bill Text: NY S05465 | 2023-2024 | General Assembly | Amended
Bill Title: Prohibits employers from discriminating against individuals based on such individual's status as a caregiver.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed) 2024-06-07 - COMMITTED TO RULES [S05465 Detail]
Download: New_York-2023-S05465-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5465--A Cal. No. 766 2023-2024 Regular Sessions IN SENATE March 6, 2023 ___________ Introduced by Sens. JACKSON, FERNANDEZ, MAY -- read twice and ordered printed, and when printed to be committed to the Committee on Investi- gations and Government Operations -- recommitted to the Committee on Investigations and Government Operations in accordance with Senate Rule 6, sec. 8 -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the executive law, in relation to prohibiting employers from discriminating against individuals based on such individual's status as a caregiver The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 21-e of section 292 of the executive law, as 2 amended by chapter 369 of the laws of 2015, is amended to read as 3 follows: 4 21-e. The term "reasonable accommodation" means actions taken which 5 permit an employee, prospective employee or member with a disability, or 6 a pregnancy-related condition, or who is a caregiver, to perform in a 7 reasonable manner the activities involved in the job or occupation 8 sought or held and include, but are not limited to, provision of an 9 accessible worksite, acquisition or modification of equipment, support 10 services for persons with impaired hearing or vision, modifications to 11 existing facilities to make them more accessible, modification or relo- 12 cation of a workstation, modifications to workplace policies regarding 13 food and drink, modifications to a uniform or dress code, temporary 14 transfer to a less physically demanding or hazardous position, assist- 15 ance with lifting or other manual labor, additional or more flexible 16 break time, job restructuring [and], modified or part-time work sched- 17 ules, alternative working arrangements such as part-year employment or 18 job sharing, flexible scheduling or variable hours, alternative work 19 locations or reassignment to another location, remote work or telework, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07398-03-4S. 5465--A 2 1 consistent or predictable scheduling, time off work such as to attend 2 meetings or appointments, temporary or permanent transfer to another 3 position, or leave of absence; provided, however, that such actions do 4 not impose an undue hardship on the business, program or enterprise of 5 the entity from which action is requested. 6 § 2. Section 292 of the executive law is amended by adding 4 new 7 subdivisions 42, 43, 44 and 45 to read as follows: 8 42. The term "caregiver" means a person who provides the daily care or 9 supervision of a minor child or a care recipient, or any person who 10 contributes to and is involved in the caretaking responsibilities of 11 such minor child or care recipient. Such minor child or care recipient 12 may, but need not, reside in the household of the caregiver. The defi- 13 nition of "caregiver" shall not include persons performing caretaking 14 services in the capacity of employment as a domestic worker as defined 15 by subdivision sixteen of section two of the labor law. 16 43. The term "minor child" means a child under the age of eighteen. 17 44. The term "care recipient" means a covered family member who has a 18 disability, including a temporary disability, or is aged sixty-five or 19 older, and who relies on the caregiver for medical care or to meet the 20 needs of daily living. 21 45. The term "covered family member" means: 22 (a) a child, meaning the biological, adoptive, or foster child, legal 23 ward, a child to whom the caregiver stands in loco parentis, or child to 24 whom the caregiver stood in loco parentis when the care recipient was a 25 minor child; 26 (b) a parent, meaning the biological, foster, step- or adoptive 27 parent, or a legal guardian of the caregiver, or a person who stood in 28 loco parentis when the caregiver was a minor child; 29 (c) a spouse or domestic partner; 30 (d) a child of the caregiver's spouse or domestic partner; 31 (e) a parent of the caregiver's spouse or domestic partner; 32 (f) a grandchild, meaning a child of the caregiver's child; 33 (g) a grandparent, meaning a parent of the caregiver's parent; 34 (h) a sibling, including half-siblings, step-siblings, foster-si- 35 blings, and siblings related through adoption; and 36 (i) any other individual related by blood to the caregiver or whose 37 close association with the caregiver is the equivalent of a family 38 relationship. 39 § 3. Subdivision 1 of section 296 of the executive law, as separately 40 amended by chapters 202 and 748 of the laws of 2022, is amended to read 41 as follows: 42 1. It shall be an unlawful discriminatory practice: 43 (a) For an employer or licensing agency, because of an individual's 44 age, race, creed, color, national origin, citizenship or immigration 45 status, sexual orientation, gender identity or expression, military 46 status, sex, disability, predisposing genetic characteristics, familial 47 status, marital status, [or] status as a victim of domestic violence, or 48 status as a caregiver, to refuse to hire or employ or to bar or to 49 discharge from employment such individual or to discriminate against 50 such individual in compensation or in terms, conditions or privileges of 51 employment. 52 (b) For an employment agency to discriminate against any individual 53 because of age, race, creed, color, national origin, citizenship or 54 immigration status, sexual orientation, gender identity or expression, 55 military status, sex, disability, predisposing genetic characteristics, 56 familial status, marital status, status as a caregiver, or status as aS. 5465--A 3 1 victim of domestic violence, in receiving, classifying, disposing or 2 otherwise acting upon applications for its services or in referring an 3 applicant or applicants to an employer or employers. 4 (c) For a labor organization, because of the age, race, creed, color, 5 national origin, citizenship or immigration status, sexual orientation, 6 gender identity or expression, military status, sex, disability, predis- 7 posing genetic characteristics, familial status, marital status, status 8 as a caregiver, or status as a victim of domestic violence, of any indi- 9 vidual, to exclude or to expel from its membership such individual or to 10 discriminate in any way against any of its members or against any 11 employer or any individual employed by an employer. 12 (d) For any employer or employment agency to print or circulate or 13 cause to be printed or circulated any statement, advertisement or publi- 14 cation, or to use any form of application for employment or to make any 15 inquiry in connection with prospective employment, which expresses 16 directly or indirectly, any limitation, specification or discrimination 17 as to age, race, creed, color, national origin, citizenship or immi- 18 gration status, sexual orientation, gender identity or expression, mili- 19 tary status, sex, disability, predisposing genetic characteristics, 20 familial status, marital status, status as a caregiver, or status as a 21 victim of domestic violence, or any intent to make any such limitation, 22 specification or discrimination, unless based upon a bona fide occupa- 23 tional qualification; provided, however, that neither this paragraph nor 24 any provision of this chapter or other law shall be construed to prohib- 25 it the department of civil service or the department of personnel of any 26 city containing more than one county from requesting information from 27 applicants for civil service examinations concerning any of the afore- 28 mentioned characteristics, other than sexual orientation, for the 29 purpose of conducting studies to identify and resolve possible problems 30 in recruitment and testing of members of minority groups to ensure the 31 fairest possible and equal opportunities for employment in the civil 32 service for all persons, regardless of age, race, creed, color, national 33 origin, citizenship or immigration status, sexual orientation or gender 34 identity or expression, military status, sex, disability, predisposing 35 genetic characteristics, familial status, [or] marital status, or status 36 as a caregiver. 37 (e) For any employer, labor organization or employment agency to 38 discharge, expel or otherwise discriminate against any person because 39 [he or she] such person has opposed any practices forbidden under this 40 article or because [he or she] such person has filed a complaint, testi- 41 fied or assisted in any proceeding under this article. 42 (f) Nothing in this subdivision shall affect any restrictions upon the 43 activities of persons licensed by the state liquor authority with 44 respect to persons under twenty-one years of age. 45 (g) For an employer to compel an employee who is pregnant to take a 46 leave of absence, unless the employee is prevented by such pregnancy 47 from performing the activities involved in the job or occupation in a 48 reasonable manner. 49 (h) For an employer, licensing agency, employment agency or labor 50 organization to subject any individual to harassment because of an indi- 51 vidual's age, race, creed, color, national origin, citizenship or immi- 52 gration status, sexual orientation, gender identity or expression, mili- 53 tary status, sex, disability, predisposing genetic characteristics, 54 familial status, marital status, status as a caregiver, status as a 55 victim of domestic violence, or because the individual has opposed any 56 practices forbidden under this article or because the individual hasS. 5465--A 4 1 filed a complaint, testified or assisted in any proceeding under this 2 article, regardless of whether such harassment would be considered 3 severe or pervasive under precedent applied to harassment claims. Such 4 harassment is an unlawful discriminatory practice when it subjects an 5 individual to inferior terms, conditions or privileges of employment 6 because of the individual's membership in one or more of these protected 7 categories. The fact that such individual did not make a complaint 8 about the harassment to such employer, licensing agency, employment 9 agency or labor organization shall not be determinative of whether such 10 employer, licensing agency, employment agency or labor organization 11 shall be liable. Nothing in this section shall imply that an employee 12 must demonstrate the existence of an individual to whom the employee's 13 treatment must be compared. It shall be an affirmative defense to 14 liability under this subdivision that the harassing conduct does not 15 rise above the level of what a reasonable victim of discrimination with 16 the same protected characteristic or characteristics would consider 17 petty slights or trivial inconveniences. 18 § 4. Section 296 of the executive law is amended by adding a new 19 subdivision 23 to read as follows: 20 23. (a) It shall be an unlawful discriminatory practice for an employ- 21 er, licensing agency, employment agency, or labor organization to refuse 22 to provide a reasonable accommodation to an individual who is known to 23 be a caregiver to enable them to meet the needs of their minor child or 24 care recipient related to the minor child's or care recipient's health, 25 safety, education, or other needs of daily living. 26 (b) Nothing contained in this subdivision shall be construed to 27 require provision of accommodations which can be demonstrated to impose 28 an undue hardship on the operation of an employer's, licensing agency's, 29 employment agency's, or labor organization's business, program or enter- 30 prise. In making such a determination with regard to undue hardship the 31 facts to be considered include: 32 (i) the overall size of the business, program or enterprise with 33 respect to the number of employees, number and type of facilities, and 34 size of budget; 35 (ii) the type of operation which the business, program or enterprise 36 is engaged in, including the composition and structure of the workforce; 37 and 38 (iii) the nature and cost of the accommodation needed. 39 § 5. Subdivisions 2 and 3 of section 296-c of the executive law, 40 subdivision 2 as separately amended by chapters 202 and 748 of the laws 41 of 2022, paragraphs a, b and c of subdivision 2 and paragraph b of 42 subdivision 3 as amended by chapter 305 of the laws of 2023, and subdi- 43 vision 3 as added by chapter 97 of the laws of 2014, are amended to read 44 as follows: 45 2. It shall be an unlawful discriminatory practice for an employer to: 46 a. refuse to hire or employ or to bar or to discharge from internship 47 an intern or to discriminate against such intern in terms, conditions or 48 privileges of employment as an intern because of the intern's age, race, 49 creed, color, national origin, citizenship or immigration status, sexual 50 orientation, gender identity or expression, military status, sex, disa- 51 bility, predisposing genetic characteristics, marital status, [or] 52 status as a victim of domestic violence, or status as a caregiver; 53 b. discriminate against an intern in receiving, classifying, disposing 54 or otherwise acting upon applications for internships because of the 55 intern's age, race, creed, color, national origin, citizenship or immi- 56 gration status, sexual orientation, gender identity or expression, mili-S. 5465--A 5 1 tary status, sex, disability, predisposing genetic characteristics, 2 marital status, [or] status as a victim of domestic violence, or status 3 as a caregiver; 4 c. print or circulate or cause to be printed or circulated any state- 5 ment, advertisement or publication, or to use any form of application 6 for employment as an intern or to make any inquiry in connection with 7 prospective employment, which expresses directly or indirectly, any 8 limitation, specification or discrimination as to age, race, creed, 9 color, national origin, citizenship or immigration status, sexual orien- 10 tation, gender identity or expression, military status, sex, disability, 11 predisposing genetic characteristics, marital status [or], status as a 12 victim of domestic violence, or status as a caregiver, or any intent to 13 make any such limitation, specification or discrimination, unless based 14 upon a bona fide occupational qualification; provided, however, that 15 neither this paragraph nor any provision of this chapter or other law 16 shall be construed to prohibit the department of civil service or the 17 department of personnel of any city containing more than one county from 18 requesting information from applicants for civil service internships or 19 examinations concerning any of the aforementioned characteristics, other 20 than sexual orientation, for the purpose of conducting studies to iden- 21 tify and resolve possible problems in recruitment and testing of members 22 of minority groups to ensure the fairest possible and equal opportu- 23 nities for employment in the civil service for all persons, regardless 24 of age, race, creed, color, national origin, citizenship or immigration 25 status, sexual orientation, military status, sex, disability, predispos- 26 ing genetic characteristics, marital status [or], status as a victim of 27 domestic violence, or status as a caregiver; 28 d. to discharge, expel or otherwise discriminate against any person 29 because [he or she] such person has opposed any practices forbidden 30 under this article or because [he or she] such person has filed a 31 complaint, testified or assisted in any proceeding under this article; 32 or 33 e. to compel an intern who is pregnant to take a leave of absence, 34 unless the intern is prevented by such pregnancy from performing the 35 activities involved in the job or occupation in a reasonable manner. 36 3. It shall be an unlawful discriminatory practice for an employer to: 37 a. engage in unwelcome sexual advances, requests for sexual favors, or 38 other verbal or physical conduct of a sexual nature to an intern when: 39 (1) submission to such conduct is made either explicitly or implicitly 40 a term or condition of the intern's employment; 41 (2) submission to or rejection of such conduct by the intern is used 42 as the basis for employment decisions affecting such intern; or 43 (3) such conduct has the purpose or effect of unreasonably interfering 44 with the intern's work performance by creating an intimidating, hostile, 45 or offensive working environment; or 46 b. subject an intern to unwelcome harassment based on age, sex, race, 47 creed, color, sexual orientation, gender identity or expression, mili- 48 tary status, disability, predisposing genetic characteristics, marital 49 status, status as a victim of domestic violence, national origin, [or] 50 citizenship or immigration status, or status as a caregiver, or where 51 such harassment has the purpose or effect of unreasonably interfering 52 with the intern's work performance by creating an intimidating, hostile, 53 or offensive working environment. 54 § 6. This act shall take effect on the ninetieth day after it shall 55 have become a law.
