BILL NUMBER: S7192

SPONSOR: PERSAUD
 
TITLE OF BILL:  An act to amend the executive law, in relation to
defining retaliatory acts in the workplace and establishing an affirma-
tive defense

 
PURPOSE:

To strengthen the provisions of law protecting against retaliation by an
employer against an employee who complains of discriminatory conduct to
the State Division of Human Rights

 
SUMMARY OF PROVISIONS:

Section one provides that an employee who complains about discriminatory
conduct to the State Division of Human Rights or otherwise opposes
discriminatory practices within the workplace may not be retaliated
against unless the employer can raise one of two new affirmative
defenses. For purposes of this section, any treatment that is less
favorable towards the claimant compared to any other employee shall be
              

deemed to be retaliation. The employer may raise one of two affirmative
defenses to rebut the presumption of retaliation; either that the
employer had previously planned to demote, discharge, or penalize the
employee before they learned of the employee's status as a person who
has complained about discriminatory conduct in the workplace, or alter-
natively that the employer can prove that the less favorable treatment
has occurred without any consideration of the employee's opposition to
or complaint of discriminatory conduct.

Section two states the effective date.

 
JUSTIFICATION:

Employees who suffer from or are witness to discriminatory conduct are
often afraid to report these actions to state authorities, in part due
to fear of reprisal in the workplace.  The Human Rights Law generally
prohibits retaliation, but the current provisions are too narrow. Courts
often find that an employee is not protected from retaliation because
the employer argues that the adverse employment action was caused for
some reason other than the employee reporting conduct to the Division of
Human Rights. These mixed-motive cases are difficult for an employee to
combat, and creates a chilling effect among other employees.

The failure of the state's anti-retaliation laws in the area of discrim-
ination has become particularly evidence with the rise of public reports
of incidents of sexual harassment. It has become clear that far too many
women fear reporting conduct and expect little protection if they report
harassing co-workers or supervisors to the proper authorities. This
means that the state must enhance current law and ensure that workers
are protected from reprisal.

This legislation will ensure that when an employee reports or threatens
to report an act of discrimination, including one of sexual harassment,
that the employee will be protected from being treated less favorably in
the workplace. This legislation would broaden current law so that any
less favorable treatment would be deemed retaliatory, and would force
the employer to bear the burden of showing that their conduct was not
retaliatory, either by showing they had no knowledge of the employee's
report of misconduct or by showing that the employer paid no attention
to employee's status as a reporter or objector to discriminatory
conduct. If enacted, this law would strongly encourage more employees to
come forward with reports of discriminatory conduct, and help ferret out
harassing and discriminatory behavior from the workplace.

 
FISCAL IMPACT:

None

 
EFFECTIVE DATE:
Immediately.