S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1886

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 14, 2009
                               ___________

Introduced  by  M. of A. JACOBS, DESTITO, GALEF -- Multi-Sponsored by --
  M. of A. BENJAMIN, BOYLAND, CANESTRARI, COLTON, DelMONTE, DIAZ, DINOW-
  ITZ, FARRELL, GORDON, GREENE, HIKIND, JOHN, LAVINE, McENENY,  MILLMAN,
  O'DONNELL, PERRY, PHEFFER, J. RIVERA, ROBINSON, SWEENEY, WEISENBERG --
  read once and referred to the Committee on Governmental Operations

AN  ACT to amend the civil rights law and the executive law, in relation
  to increasing the  monetary  and  criminal  penalties  for  aggravated
  harassment or discrimination

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 2 of section 40-c of the civil rights  law,  as
amended by chapter 2 of the laws of 2002, is amended to read as follows:
  2.  No  person  shall, because of race, creed, color, national origin,
sex, marital status, sexual orientation or disability, as such  term  is
defined  in  section  two  hundred  ninety-two  of the executive law, be
subjected to any discrimination in his or her civil rights,  or  to  any
harassment,  as  defined in section [240.25] 240.26 of the penal law, in
the exercise thereof, by any other person or by any firm, corporation or
institution, or by the state or any agency or subdivision of the state.
  S 2. Section 40-d of the civil rights law, as amended by  chapter  191
of the laws of 1982, is amended to read as follows:
  S 40-d. Penalty for violation. Any person who shall violate any of the
provisions  of  the  foregoing  section, or subdivision three of section
240.30 or section 240.31 of the penal law, or who shall  aid  or  incite
the  violation  of any of said provisions shall for [each and every] THE
FIRST violation thereof be liable to a penalty  of  not  less  than  one
[hundred]  THOUSAND  dollars  nor  more than [five hundred] TEN THOUSAND
dollars, AND FOR EACH SUBSEQUENT VIOLATION THEREOF BE LIABLE TO A PENAL-
TY OF NOT LESS THAN TWENTY-FIVE HUNDRED DOLLARS  NOR  MORE  THAN  TWELVE
THOUSAND  FIVE  HUNDRED DOLLARS, to be recovered by the person aggrieved
thereby in any court of competent jurisdiction in the  county  in  which

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04045-01-9
              

A. 1886                             2

the  defendant  shall  reside. In addition, any person who shall violate
any of the provisions of the foregoing section shall be deemed guilty of
a class [A misdemeanor] E FELONY FOR THE FIRST VIOLATION THEREOF  AND  A
CLASS  D  FELONY FOR ANY SUBSEQUENT VIOLATION THEREOF.  At or before the
commencement of any action under this section, notice thereof  shall  be
served upon the attorney general.
  S 3. Paragraph a of subdivision 3 of section 297 of the executive law,
as  amended  by section 11 of part D of chapter 405 of the laws of 1999,
is amended to read as follows:
  a. If in the judgment of the division the circumstances so warrant, it
may, at any time after the filing of the complaint, endeavor  to  elimi-
nate  such  unlawful discriminatory practice by conference, conciliation
and persuasion. Each conciliation  agreement  shall  include  provisions
requiring  the  respondent  to  refrain  from the commission of unlawful
discriminatory practices in the future  and  may  contain  such  further
provisions  as  may be agreed upon by the division, the complainant, and
the respondent, including PAYMENT BY THE RESPONDENT OF CIVIL  FINES  AND
PENALTIES  PROVIDED  IN SUBDIVISION FOUR OF THIS SECTION AND a provision
for the entry in the  supreme  court  in  any  county  in  the  judicial
district  where the alleged unlawful discriminatory practice was commit-
ted, or where any respondent resides or  maintains  an  office  for  the
transaction  of  business,  or  where the housing accommodation, land or
commercial space specified in the complaint is  located,  of  a  consent
decree  embodying  the terms of the conciliation agreement. The division
shall not disclose what has transpired in the course of such endeavors.
  S 4. Paragraph c of subdivision 4 of section 297 of the executive law,
as amended by chapter 166 of the laws of 2000, is  amended  to  read  as
follows:
  c. Within one hundred eighty days after the commencement of such hear-
ing,  a  determination  shall be made and an order served as hereinafter
provided. If, upon all the evidence at  the  hearing,  the  commissioner
shall  find that a respondent has engaged in any unlawful discriminatory
practice as defined in this article, the commissioner shall state  find-
ings  of  fact and shall issue and cause to be served on such respondent
an order, based on such findings and setting them forth,  and  including
such of the following provisions as in the judgment of the division will
effectuate  the  purposes of this article: (i) requiring such respondent
to cease and desist from such  unlawful  discriminatory  practice;  (ii)
requiring  such  respondent  to  take such affirmative action, including
(but not limited to) hiring, reinstatement or  upgrading  of  employees,
with  or  without  back pay, restoration to membership in any respondent
labor organization, admission to or participation in a guidance program,
apprenticeship training program, on-the-job training  program  or  other
occupational  training  or  retraining  program,  the extension of full,
equal and unsegregated accommodations, advantages, facilities and privi-
leges to all persons, granting the credit which was the subject  of  any
complaint,  evaluating  applicants for membership in a place of accommo-
dation without discrimination based  on  race,  creed,  color,  national
origin,  sex,  disability  or marital status, and without retaliation or
discrimination based on opposition to practices forbidden by this  arti-
cle  or  filing  a  complaint, testifying or assisting in any proceeding
under this article; (iii) awarding of compensatory damages to the person
aggrieved by such practice; (iv) awarding of punitive damages, in  cases
of  housing discrimination only, in an amount not to exceed ten thousand
dollars, to the person aggrieved by such practice; (v) requiring payment
to the state of profits obtained by a respondent through the  commission

A. 1886                             3

of  unlawful  discriminatory  acts  described  in subdivision three-b of
section two hundred ninety-six of this  article;  [and]  (vi)  assessing
civil  fines  and penalties, in cases of housing discrimination only, in
an  amount not to exceed fifty thousand dollars, to be paid to the state
by a respondent found to have committed an unlawful discriminatory  act,
or not to exceed one hundred thousand dollars to be paid to the state by
a  respondent  found  to  have  committed an unlawful discriminatory act
which is found to be willful, wanton or malicious; AND (vii) requiring a
report of the manner of compliance.  If,  upon  all  the  evidence,  the
commissioner  shall  find  that a respondent has not engaged in any such
unlawful discriminatory practice, he or she shall state findings of fact
and shall issue and cause to be served on the complainant an order based
on such findings and setting them forth dismissing the said complaint as
to such respondent. A copy of each  order  issued  by  the  commissioner
shall  be  delivered in all cases to the attorney general, the secretary
of state, if he or she has issued a license to the respondent, and  such
other  public  officers  as  the  division deems proper, and if any such
order issued by the commissioner  concerns  a  regulated  creditor,  the
commissioner  shall  forward a copy of any such order to the superinten-
dent. A copy of any complaint  filed  against  any  respondent  who  has
previously entered into a conciliation agreement pursuant to paragraph a
of subdivision three of this section or as to whom an order of the divi-
sion  has  previously  been  entered pursuant to this paragraph shall be
delivered to the attorney general, to the secretary of state  if  he  or
she  has  issued  a  license  to the respondent and to such other public
officers as the division deems proper, and if any such respondent  is  a
regulated  creditor,  the  commissioner shall forward a copy of any such
complaint to the superintendent.
  S 5. Subdivision 10 of section 297 of the executive law, as  added  by
section  17  of part D of chapter 405 of the laws of 1999, is amended to
read as follows:
  10. [With respect to cases of housing discrimination only, in]  IN  an
action  or  proceeding  at law under this section or section two hundred
ninety-eight of this article, the commissioner or the court may  in  its
discretion  award  reasonable  attorney's  fees  to  any  prevailing  or
substantially prevailing party; provided,  however,  that  a  prevailing
respondent  or  defendant in order to recover such reasonable attorney's
fees must make a motion requesting such fees and show that the action or
proceeding brought  was  frivolous;  and  further  provided  that  in  a
proceeding brought in the division of human rights, the commissioner may
only award attorney's fees as part of a final order after a public hear-
ing  held pursuant to subdivision four of this section. In no case shall
attorney's fees be awarded to the division, nor shall  the  division  be
liable  to a prevailing or substantially prevailing party for attorney's
fees, except in a case in which the division is a party to the action or
the proceeding in the division's capacity as an employer.   In order  to
find  the action or proceeding to be frivolous, the court or the commis-
sioner must find in writing one or more of the following:
  (a) the action or proceeding was commenced, used or continued  in  bad
faith, solely to delay or prolong the resolution of the litigation or to
harass or maliciously injure another; or
  (b)  the  action or proceeding was commenced or continued in bad faith
without any reasonable basis and could not be supported by a good  faith
argument  for an extension, modification or reversal of existing law. If
the action or proceeding was promptly discontinued  when  the  party  or
attorney  learned  or  should have learned that the action or proceeding

A. 1886                             4

lacked such a reasonable basis, the court may find that the party or the
attorney did not act in bad faith.
  S  6.  The  executive  law is amended by adding a new section 298-b to
read as follows:
  S 298-B. CIVIL PENALTIES. 1. ANY CIVIL  PENALTY  IMPOSED  PURSUANT  TO
SUBDIVISION  FOUR  OF  SECTION  TWO HUNDRED NINETY-SEVEN OF THIS ARTICLE
SHALL BE COLLECTED BY THE DIVISION  AND  SHALL  BE  DEPOSITED  INTO  THE
GENERAL  FUND  TO  THE  CREDIT OF THE DIVISION AND SHALL BE USED FOR THE
ORDINARY OPERATING EXPENSES OF THE DIVISION.
  2. ANY PENALTY IMPOSED PURSUANT TO SUBDIVISION FOUR OR NINE OF SECTION
TWO HUNDRED NINETY-SEVEN OF THIS ARTICLE SHALL BE SEPARATELY STATED, AND
SHALL BE IN ADDITION TO AND NOT REDUCE OR OFFSET ANY  OTHER  DAMAGES  OR
PAYMENT IMPOSED UPON A RESPONDENT PURSUANT TO SUCH SECTION.
  S  7.  This act shall take effect on the ninetieth day  after it shall
have become a law.