S T A T E   O F   N E W   Y O R K
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                                  3784

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2013
                               ___________

Introduced  by  M. of A. JACOBS, GALEF -- Multi-Sponsored by -- M. of A.
  BOYLAND,  COLTON,  DINOWITZ,   FARRELL,   HIKIND,   LAVINE,   MILLMAN,
  O'DONNELL,  PERRY,  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
the defendant shall reside. In addition, any person  who  shall  violate

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03023-01-3
              

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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, subparagraph (vi) as
amended by section 1 of part AA of chapter 57 of the laws  of  2009,  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

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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 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  divi-
sion  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  superintendent. 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  division  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 prop-
er, 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

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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.