Senate Bill S6972

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6972
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             December 15, 2017
                                ___________
 
 Introduced  by  Sens. YOUNG, PHILLIPS -- read twice and ordered printed,
   and when printed to be committed to the Committee on Rules
 
 AN ACT to amend the executive law, the civil practice law and rules  and
   the  general  business  law,  in relation to discrimination based upon
   sexual harassment

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  5  of  section  292 of the executive law, as
 amended by chapter 363 of the laws of 2015, is amended and a new  subdi-
 vision 35 is added to read as follows:
   5.  The  term "employer" does not include any employer with fewer than
 four persons in his or her employ except as set  forth  in  section  two
 hundred  ninety-six-b  of  this  article, provided, however, that in the
 case of an action for discrimination based on sex pursuant  to  subdivi-
 sion one of section two hundred ninety-six of this article, with respect
 to sexual harassment only, the term "employer" shall include all employ-
 ers  within  the  state.    PROVIDED,  FURTHER, THAT IN AN ACTION FOR AN
 UNLAWFUL DISCRIMINATORY PRACTICE PURSUANT TO SUBDIVISION ONE OF  SECTION
 TWO  HUNDRED  NINETY-SIX OF THIS ARTICLE, WITH RESPECT TO SEXUAL HARASS-
 MENT ONLY, THE TERM "EMPLOYER" SHALL INCLUDE THOSE ENTITIES  BENEFITTING
 FROM OR UTILIZING THE SERVICES OF AN INDEPENDENT CONTRACTOR.
   35.  THE  TERM  "SEXUAL  HARASSMENT"  MEANS UNWELCOME SEXUAL ADVANCES,
 REQUESTS FOR SEXUAL FAVORS, AND OTHER VERBAL OR PHYSICAL  CONDUCT  OF  A
 SEXUAL NATURE WHEN SUBMISSION TO OR REJECTION OF SUCH CONDUCT, EXPLICIT-
 LY  OR  IMPLICITLY,  AFFECTS  AN  INDIVIDUAL'S  EMPLOYMENT, UNREASONABLY
 INTERFERES WITH AN INDIVIDUAL'S WORK PERFORMANCE OR  CREATES  AN  INTIM-
 IDATING,  HOSTILE OR OFFENSIVE WORK ENVIRONMENT WITHOUT REGARD TO ACTUAL
 ECONOMIC INJURY TO OR DISCHARGE OF THE INDIVIDUAL.
   § 2. The civil practice law and rules  is  amended  by  adding  a  new
 section 5003-b to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13880-05-7
              

 S. 6972                             2
 
   §  5003-B. ACTIONS FOR SEXUAL HARASSMENT.  WITH RESPECT TO ALL ACTIONS
 TO RECOVER DAMAGES FOR SEXUAL  HARASSMENT,  AS  DEFINED  IN  SUBDIVISION
 THIRTY-FIVE  OF  SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE LAW, NO
 COURT SHALL ACCEPT ANY SETTLEMENT, INCLUDING ANY CONFIDENTIALITY  AGREE-
 MENT OR PROVISION, THAT PROVIDES FOR THE NON-DISCLOSURE OR CONFIDENTIAL-
 ITY  OF  THE  ACTS  CONSTITUTING  THE SEXUAL HARASSMENT AND THE ADMITTED
 PERPETRATOR THEREOF. FOR THE PURPOSES OF THIS SECTION, EVERY  SETTLEMENT
 IN  WHICH  ONE  DOLLAR  OR  MORE  IS TO BE PAID SHALL BE DEEMED TO BE AN
 ADMISSION OF THE ACT OF SEXUAL HARASSMENT. PROVIDED, HOWEVER, SUBJECT TO
 THE PROVISIONS OF THE DOMESTIC RELATIONS LAW, A SETTLEMENT AGREEMENT MAY
 INCLUDE A CONFIDENTIALITY PROVISION ONLY IF SUCH PROVISION  IS  APPROVED
 BY THE COURT FOR GOOD CAUSE IN AN OPEN PROCEEDING.
   § 3. The general business law is amended by adding a new section 398-f
 to read as follows:
   §  398-F.  MANDATORY  ARBITRATION CLAUSES IN CONTRACTS; PROHIBITED. 1.
 DEFINITIONS. AS USED IN THIS SECTION:
   A.  THE TERM "EMPLOYER" SHALL HAVE THE SAME  MEANING  AS  PROVIDED  IN
 SUBDIVISION FIVE OF SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE LAW.
   B.  THE  TERM  "SEXUAL  HARASSMENT"  SHALL  HAVE  THE  SAME MEANING AS
 PROVIDED IN SUBDIVISION THIRTY-FIVE OF SECTION TWO HUNDRED NINETY-TWO OF
 THE EXECUTIVE LAW.
   C.   THE TERM "MANDATORY ARBITRATION CLAUSE"  SHALL  MEAN  A  TERM  OR
 PROVISION  CONTAINED IN A WRITTEN CONTRACT WHICH REQUIRES THE PARTIES TO
 SUCH CONTRACT TO SUBMIT ANY CONTROVERSY THEREAFTER  ARISING  UNDER  SUCH
 CONTRACT TO ARBITRATION PRIOR TO THE COMMENCEMENT OF ANY LEGAL ACTION TO
 ENFORCE  THE PROVISIONS OF SUCH CONTRACT AND WHICH ALSO FURTHER PROVIDES
 LANGUAGE TO THE EFFECT THAT THE DECISION OF THE ARBITRATOR OR  PANEL  OF
 ARBITRATORS IN ITS APPLICATION TO A PARTY ALLEGING AN UNLAWFUL DISCRIMI-
 NATORY  PRACTICE  BASED  ON  SEXUAL  HARASSMENT  SHALL  BE FINAL AND NOT
 SUBJECT TO COURT REVIEW.
   D. THE TERM "ARBITRATION" SHALL MEAN THE  USE  OF  A  DECISION  MAKING
 FORUM  CONDUCTED  BY  AN  ARBITRATOR  OR PANEL OF ARBITRATORS WITHIN THE
 MEANING AND SUBJECT TO THE PROVISIONS OF  ARTICLE  SEVENTY-FIVE  OF  THE
 CIVIL PRACTICE LAW AND RULES.
   2.  A.  PROHIBITION. NO WRITTEN CONTRACT, ENTERED INTO ON OR AFTER THE
 EFFECTIVE DATE OF THIS SECTION, TO WHICH AN EMPLOYER IS A  PARTY,  SHALL
 CONTAIN  A MANDATORY ARBITRATION CLAUSE RELATING TO UNLAWFUL DISCRIMINA-
 TORY PRACTICES BASED ON SEXUAL HARASSMENT.   NOTHING CONTAINED  IN  THIS
 SECTION  SHALL BE CONSTRUED TO PROHIBIT AN EMPLOYER FROM INCORPORATING A
 PROVISION WITHIN SUCH CONTRACT, THAT IS NOT RELATED  TO  ANY  MANNER  TO
 SEXUAL HARASSMENT, THAT THE PARTIES AGREE THAT THE DECISION OF THE ARBI-
 TRATOR  OR PANEL OF ARBITRATORS SHALL BE FINAL IN ITS APPLICATION TO THE
 PARTIES AND NOT SUBJECT TO COURT REVIEW.
   B. MANDATORY ARBITRATION CLAUSE NULL AND VOID. THE PROVISIONS OF  SUCH
 A  MANDATORY ARBITRATION CLAUSE SHALL BE NULL AND VOID. THE INCLUSION OF
 SUCH CLAUSE IN A WRITTEN CONTRACT SHALL NOT SERVE TO IMPAIR THE ENFORCE-
 ABILITY OF ANY OTHER PROVISION OF SUCH CONTRACT.
   § 4. This act shall take effect on the first of January next  succeed-
 ing the date on which it shall have become a law.