S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6290
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 2, 2017
                                ___________
 
 Introduced  by M. of A. FINCH -- read once and referred to the Committee
   on Governmental Operations
 
 AN ACT to amend the executive law and the  labor  law,  in  relation  to
   sexual harassment in the workplace
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. This act shall be known and may be cited  as  the  "woman's
 workplace protection act".
   §  2.  The  executive  law is amended by adding a new section 296-d to
 read as follows:
   § 296-D. SEXUAL HARASSMENT IN THE WORKPLACE. 1.  IN  ADDITION  TO  THE
 UNLAWFUL  DISCRIMINATORY    PRACTICES  INCLUDED  IN SECTIONS TWO HUNDRED
 NINETY-SIX AND TWO HUNDRED NINETY-SIX-A OF THIS ARTICLE, SEXUAL  HARASS-
 MENT SHALL BE CONSIDERED AN UNLAWFUL DISCRIMINATORY PRACTICE.
   2.  (A)  AS USED IN THIS SECTION "SEXUAL HARASSMENT" MEANS AN UNLAWFUL
 DISCRIMINATORY PRACTICE ON THE BASIS OF SEX THAT IS BASED  ON  UNWELCOME
 SEXUAL ADVANCES, REQUEST FOR SEXUAL FAVORS, AND OTHER VERBAL OR PHYSICAL
 CONDUCT OF A SEXUAL NATURE WHEN:
   (1) SUBMISSION TO SUCH CONDUCT IS MADE EITHER EXPLICITLY OR IMPLICITLY
 A TERM OR CONDITION OF AN INDIVIDUAL'S EMPLOYMENT;
   (2)  SUBMISSION  TO  OR  REJECTION OF SUCH CONDUCT BY AN INDIVIDUAL IS
 USED AS THE BASIS FOR EMPLOYMENT DECISIONS AFFECTING SUCH INDIVIDUAL; OR
   (3) SUCH CONDUCT HAS THE PURPOSE OR EFFECT OF UNREASONABLY INTERFERING
 WITH AN INDIVIDUAL'S  WORK  PERFORMANCE  OR  CREATING  AN  INTIMIDATING,
 HOSTILE, OR OFFENSIVE WORKING ENVIRONMENT.
   (B)  "SEXUAL  HARASSMENT"  SHALL  ALSO MEAN THE UNLAWFUL SEX DISCRIMI-
 NATION AGAINST PERSONS WHO WERE QUALIFIED FOR BUT DENIED  AN  EMPLOYMENT
 OPPORTUNITY  OR  BENEFIT DUE TO ANOTHER PERSON'S RECEIPT OF SUCH EMPLOY-
 MENT OPPORTUNITY OR BENEFIT DUE TO HIS OR HER SUBMISSION TO THE  EMPLOY-
 ER'S SEXUAL ADVANCES OR REQUESTS FOR SEXUAL FAVORS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00774-01-7
              

 A. 6290                             2
 
   3.  IN  DETERMINING WHETHER ALLEGED CONDUCT CONSTITUTES SEXUAL HARASS-
 MENT, THE COMMISSIONER WILL LOOK AT THE RECORD AS A  WHOLE  AND  AT  THE
 TOTALITY OF THE CIRCUMSTANCES, SUCH AS THE NATURE OF THE SEXUAL ADVANCES
 AND THE CONTEXT IN WHICH THE ALLEGED INCIDENTS OCCURRED. THE COMMISSION-
 ER  SHALL ALSO CONSIDER THE IMMEDIATE AND APPROPRIATE CORRECTIVE ACTIONS
 TAKEN BY THE EMPLOYER AND ACTIONS TAKEN BY THE EMPLOYER TO PREVENT SEXU-
 AL HARASSMENT. THE DETERMINATION OF THE LEGALITY OF A PARTICULAR  ACTION
 WILL BE MADE FROM THE FACTS, ON A CASE BY CASE BASIS.
   § 3. 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, AND IN CASES OF SEXUAL HARASSMENT ONLY, IN  AN  AMOUNT  NOT  TO
 EXCEED  ONE  HUNDRED  THOUSAND  DOLLARS, to the person aggrieved by such
 practice; (v) requiring payment to the state of profits  obtained  by  a
 respondent  through  the  commission  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; (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

 A. 6290                             3
 
 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.
   § 4. Paragraph (a) of subdivision 2 of section 740 of the  labor  law,
 as  amended  by  chapter  442 of the laws of 2006, is amended to read as
 follows:
   (a) discloses, or threatens to disclose to a supervisor or to a public
 body an activity,  policy  or  practice  of  the  employer  that  is  in
 violation  of  law,  rule  or  regulation  which  violation  creates and
 presents a substantial and specific danger to the public health or safe-
 ty, or which constitutes SEXUAL HARASSMENT OR health care fraud;
   § 5. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.