The New York State Senate

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

                                  8421

                       2019-2020 Regular Sessions

                          I N  A S S E M B L Y

                              June 16, 2019
                               ___________

Introduced by M. of A. SIMOTAS, WRIGHT, ROZIC, WEINSTEIN, SIMON, CRUZ --
  read once and referred to the Committee on Codes

AN  ACT to amend the executive law, in relation to increased protections
  for protected classes and special protections for employees  who  have
  been  sexually  harassed;  to  amend  the  general obligations law, in
  relation to nondisclosure agreements; to amend the civil practice  law
  and  rules  and  the  executive law, in relation to discrimination; to
  amend the labor law, in relation to  requiring  employers  to  provide
  employees  notice  of  their  sexual  harassment  prevention  training
  program in writing in English and in employees' primary languages;  to
  amend the executive law, in relation to extending the statute of limi-
  tations  for claim resulting from unlawful or discriminatory practices
  constituting sexual harassment to three years; to amend the labor law,
  in relation to the model sexual harassment prevention  guidance  docu-
  ment  and  sexual  harassment  prevention  policy;  and  directing the
  commissioner of labor to  conduct  a  study  on  strengthening  sexual
  harassment prevention laws

  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 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
employers within the state, INCLUDING THE STATE AND ALL POLITICAL SUBDI-
VISIONS THEREOF.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13425-01-9

A. 8421                             2

  §  1-a.  Section  292  of the executive law is amended by adding a new
subdivision 37 to read as follows:
  37.  THE  TERM "PRIVATE EMPLOYER" AS USED IN SECTION TWO HUNDRED NINE-
TY-SEVEN OF THIS ARTICLE SHALL INCLUDE ANY PERSON, COMPANY, CORPORATION,
LABOR ORGANIZATION OR ASSOCIATION. IT SHALL NOT INCLUDE THE STATE OR ANY
LOCAL SUBDIVISION THEREOF, OR ANY STATE  OR  LOCAL  DEPARTMENT,  AGENCY,
BOARD OR COMMISSION.
  §  2.  Subdivision 1 of section 296 of the executive law is amended by
adding a new paragraph (h) to read as follows:
  (H) FOR AN EMPLOYER, LICENSING  AGENCY,  EMPLOYMENT  AGENCY  OR  LABOR
ORGANIZATION TO SUBJECT ANY INDIVIDUAL TO HARASSMENT BECAUSE OF AN INDI-
VIDUAL'S  AGE,  RACE, CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIENTATION,
GENDER IDENTITY OR EXPRESSION, MILITARY STATUS, SEX, DISABILITY, PREDIS-
POSING GENETIC CHARACTERISTICS, FAMILIAL STATUS, MARITAL STATUS,  DOMES-
TIC  VIOLENCE  VICTIM  STATUS, OR BECAUSE THE INDIVIDUAL HAS OPPOSED ANY
PRACTICES FORBIDDEN UNDER THIS ARTICLE OR  BECAUSE  THE  INDIVIDUAL  HAS
FILED  A  COMPLAINT,  TESTIFIED OR ASSISTED IN ANY PROCEEDING UNDER THIS
ARTICLE, REGARDLESS OF  WHETHER  SUCH  HARASSMENT  WOULD  BE  CONSIDERED
SEVERE  OR  PERVASIVE UNDER PRECEDENT APPLIED TO HARASSMENT CLAIMS. SUCH
HARASSMENT IS AN UNLAWFUL DISCRIMINATORY PRACTICE WHEN  IT  SUBJECTS  AN
INDIVIDUAL  TO  INFERIOR  TERMS,  CONDITIONS OR PRIVILEGES OF EMPLOYMENT
BECAUSE OF THE INDIVIDUAL'S MEMBERSHIP IN ONE OR MORE OF THESE PROTECTED
CATEGORIES. THE FACT THAT SUCH INDIVIDUAL DID NOT MAKE A COMPLAINT ABOUT
THE HARASSMENT TO SUCH EMPLOYER, LICENSING AGENCY, EMPLOYMENT AGENCY  OR
LABOR  ORGANIZATION SHALL NOT BE DETERMINATIVE OF WHETHER SUCH EMPLOYER,
LICENSING AGENCY, EMPLOYMENT  AGENCY  OR  LABOR  ORGANIZATION  SHALL  BE
LIABLE. NOTHING IN THIS SECTION SHALL IMPLY THAT AN EMPLOYEE MUST DEMON-
STRATE  THE  EXISTENCE OF AN INDIVIDUAL TO WHOM THE EMPLOYEE'S TREATMENT
MUST BE COMPARED. IT SHALL BE AN AFFIRMATIVE DEFENSE TO LIABILITY  UNDER
THIS  SUBDIVISION  THAT  THE  HARASSING  CONDUCT DOES NOT RISE ABOVE THE
LEVEL OF WHAT A  REASONABLE  VICTIM  OF  DISCRIMINATION  WITH  THE  SAME
PROTECTED  CHARACTERISTIC WOULD CONSIDER PETTY SLIGHTS OR TRIVIAL INCON-
VENIENCES.
  § 3. Paragraph (b) of subdivision 2 of section 296-b of the  executive
law,  as amended by chapter 8 of the laws of 2019, is amended to read as
follows:
  (b) Subject a domestic worker  to  [unwelcome]  harassment  [based  on
gender,   race,   religion,   sexual  orientation,  gender  identity  or
expression or national origin, where such harassment has the purpose  or
effect of unreasonably interfering with an individual's work performance
by  creating an intimidating, hostile, or offensive working environment]
AS SET OUT IN PARAGRAPH (H) OF SUBDIVISION  1  OF  SECTION  TWO  HUNDRED
NINETY-SIX OF THIS ARTICLE.
  §  4.  Section  296-d  of  the executive law, as added by section 1 of
subpart F of part KK of chapter 57 of the laws of 2018,  is  amended  to
read as follows:
  §  296-d. [Sexual harassment] UNLAWFUL DISCRIMINATORY PRACTICES relat-
ing to non-employees. It shall be an  unlawful  discriminatory  practice
for an employer to permit [sexual harassment of] UNLAWFUL DISCRIMINATION
AGAINST  non-employees  in its workplace. An employer may be held liable
to a non-employee who is a contractor, subcontractor, vendor, consultant
or other person providing services pursuant to a contract in  the  work-
place  or  who is an employee of such contractor, subcontractor, vendor,
consultant or other person providing services pursuant to a contract  in
the workplace, with respect to [sexual harassment] AN UNLAWFUL DISCRIMI-
NATORY  PRACTICE,  when  the employer, its agents or supervisors knew or

A. 8421                             3

should have known  that  such  non-employee  was  subjected  to  [sexual
harassment]  AN UNLAWFUL DISCRIMINATORY PRACTICE in the employer's work-
place, and the employer failed to take immediate and appropriate correc-
tive action. In reviewing such cases involving non-employees, the extent
of  the  employer's control and any other legal responsibility which the
employer may have with respect to the conduct of the  [harasser]  PERSON
WHO ENGAGED IN THE UNLAWFUL DISCRIMINATORY PRACTICE shall be considered.
  §  5.  Subdivision  1, paragraph c of subdivision 4 and subdivisions 9
and 10 of section 297 of the executive law, subdivision 1 and  paragraph
c  of  subdivision  4  as  amended  by  chapter 166 of the laws of 2000,
subparagraph (vi) of paragraph c of subdivision 4 as amended by  section
1 of part AA of chapter 57 of the laws of 2009, subdivision 9 as amended
by  section 16 of part D of chapter 405 of the laws of 1999 and subdivi-
sion 10 as amended by chapter 364 of the laws of 2015,  are  amended  to
read as follows:
  1.  Any  person claiming to be aggrieved by an unlawful discriminatory
practice may, by himself or herself or his OR her attorney-at-law, make,
sign and file with the division a verified complaint  in  writing  which
shall state the name and address of the person alleged to have committed
the  unlawful  discriminatory practice complained of and which shall set
forth the particulars thereof and contain such other information as  may
be  required  by the division. The commissioner of labor or the attorney
general, or the chair of the commission  on  quality  of  care  for  the
mentally  disabled,  or  the  division  on  its  own motion may, in like
manner, make, sign and file  such  complaint.  In  connection  with  the
filing  of  such  complaint,  the attorney general is authorized to take
proof, issue subpoenas and administer oaths in the  manner  provided  in
the  civil practice law and rules. Any employer whose employees, or some
of them, refuse or threaten to refuse to cooperate with  the  provisions
of  this article, may file with the division a verified complaint asking
for assistance by conciliation or other remedial action.
  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

A. 8421                             4

OF EMPLOYMENT DISCRIMINATION RELATED TO PRIVATE EMPLOYERS, AND, in cases
of housing discrimination [only], WITH DAMAGES IN HOUSING DISCRIMINATION
CASES 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  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 discri-
minatory  act,  or not to exceed one hundred thousand dollars to be paid
to the state by a respondent found to have committed an unlawful discri-
minatory 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 complain-
ant 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 gener-
al, 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
superintendent. A copy of any complaint filed against any respondent who
has previously entered into a conciliation agreement pursuant  to  para-
graph  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 proper, and if any such respondent
is a regulated creditor, the commissioner shall forward a  copy  of  any
such complaint to the superintendent.
  9.  Any  person claiming to be aggrieved by an unlawful discriminatory
practice shall have a cause of action in any court of appropriate juris-
diction for damages, including, in cases  of  EMPLOYMENT  DISCRIMINATION
RELATED  TO  PRIVATE EMPLOYERS AND housing discrimination only, punitive
damages, and such other remedies as may be  appropriate,  including  any
civil  fines and penalties provided in subdivision four of this section,
unless such person had filed a complaint hereunder  or  with  any  local
commission  on  human rights, or with the superintendent pursuant to the
provisions of section two hundred ninety-six-a of this chapter, provided
that, where the division has dismissed such complaint on the grounds  of
administrative  convenience,  on  the grounds of untimeliness, or on the
grounds that the election of remedies is  annulled,  such  person  shall
maintain all rights to bring suit as if no complaint had been filed with
the  division. At any time prior to a hearing before a hearing examiner,
a person who has a complaint pending at the division  may  request  that
the  division  dismiss  the  complaint  and annul his or her election of
remedies so that the human rights law claim may be pursued in court, and
the division may, upon  such  request,  dismiss  the  complaint  on  the
grounds  that  such  person's  election  of  an administrative remedy is
annulled. Notwithstanding subdivision (a) of section two hundred four of
the civil practice law and rules, if a complaint is so annulled  by  the
division,  upon  the request of the party bringing such complaint before
the division, such party's rights to bring such cause of action before a
court of appropriate jurisdiction shall be limited  by  the  statute  of

A. 8421                             5

limitations  in  effect  in  such  court  at  the time the complaint was
initially filed with the division. Any party to a housing discrimination
complaint shall have the right within twenty days following  a  determi-
nation  of probable cause pursuant to subdivision two of this section to
elect to have an action commenced in a  civil  court,  and  an  attorney
representing  the  division of human rights will be appointed to present
the complaint in court, or, with the consent of the division,  the  case
may  be  presented  by  complainant's attorney. A complaint filed by the
equal employment opportunity commission to comply with the  requirements
of  42  USC  2000e-5(c)  and 42 USC 12117(a) and 29 USC 633(b) shall not
constitute the filing of a complaint within the meaning of this subdivi-
sion. No person who has initiated any action in  a  court  of  competent
jurisdiction  or  who  has  an  action pending before any administrative
agency under any other law of the state based upon an act which would be
an unlawful discriminatory practice  under  this  article,  may  file  a
complaint with respect to the same grievance under this section or under
section two hundred ninety-six-a of this article.
  10.  With  respect  to all cases of housing discrimination and housing
related credit discrimination 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  attor-
ney's fees to any prevailing or substantially prevailing party; and with
respect to a claim of [employment or] credit discrimination where sex is
a  basis  of  such  discrimination,  AND  WITH  RESPECT TO ALL CLAIMS OF
EMPLOYMENT DISCRIMINATION in an action or proceeding at law  under  this
section or section two hundred ninety-eight of this article, the commis-
sioner  or  the  court  [may  in  its discretion] SHALL award reasonable
attorney's fees attributable to such  claim  to  any  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 hearing 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  substan-
tially  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  divi-
sion's capacity as an employer. In cases of employment discrimination, a
respondent  shall only be liable for attorney's fees under this subdivi-
sion if the respondent has been found liable  for  having  committed  an
unlawful  discriminatory  practice.  In  order  to  find  the  action or
proceeding to be frivolous, the court or the commissioner 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
lacked such a reasonable basis, the court may find that the party or the
attorney did not act in bad faith.
  §  6.  Section  300 of the executive law, as amended by chapter 166 of
the laws of 2000, is amended to read as follows:

A. 8421                             6

  § 300. Construction. The provisions of this article shall be construed
liberally for the  accomplishment  of  the  REMEDIAL  purposes  thereof,
REGARDLESS  OF  WHETHER  FEDERAL CIVIL RIGHTS LAWS, INCLUDING THOSE LAWS
WITH PROVISIONS WORDED COMPARABLY TO THE  PROVISIONS  OF  THIS  ARTICLE,
HAVE BEEN SO CONSTRUED. EXCEPTIONS TO AND EXEMPTIONS FROM THE PROVISIONS
OF  THIS ARTICLE SHALL BE CONSTRUED NARROWLY IN ORDER TO MAXIMIZE DETER-
RENCE OF DISCRIMINATORY CONDUCT. Nothing contained in this article shall
be deemed to repeal any of the provisions of the civil rights law or any
other law of this state relating to  discrimination  [because  of  race,
creed,  color  or national origin]; but, as to acts declared unlawful by
section two hundred ninety-six of this  article,  the  procedure  herein
provided shall, while pending, be exclusive; and the final determination
therein shall exclude any other STATE CIVIL action[, civil or criminal,]
based  on  the same grievance of the individual concerned. If such indi-
vidual institutes any action based on such grievance  without  resorting
to the procedure provided in this article, he or she may not subsequent-
ly resort to the procedure herein.
  § 7. Section 5-336 of the general obligations law, as added by section
1  of subpart D of part KK of chapter 57 of the laws of 2018, is amended
to read as follows:
  § 5-336. Nondisclosure agreements. 1. (A)  Notwithstanding  any  other
law  to  the contrary, no employer, its officers or employees shall have
the authority to include or agree to include in any  settlement,  agree-
ment  or other resolution of any claim, the factual foundation for which
involves  [sexual  harassment]  DISCRIMINATION,  IN  VIOLATION  OF  LAWS
PROHIBITING  DISCRIMINATION,  INCLUDING  BUT  NOT  LIMITED  TO,  ARTICLE
FIFTEEN OF THE EXECUTIVE LAW, any term or condition that  would  prevent
the disclosure of the underlying facts and circumstances to the claim or
action  unless  the  condition  of  confidentiality is the complainant's
preference.
  (B) Any such term or condition must be  provided  IN  WRITING  to  all
parties  IN  PLAIN  ENGLISH, AND, IF APPLICABLE, THE PRIMARY LANGUAGE OF
THE COMPLAINANT, and the  complainant  shall  have  twenty-one  days  to
consider  such  term or condition. If after twenty-one days such term or
condition is the complainant's  preference,  such  preference  shall  be
memorialized  in  an agreement signed by all parties. For a period of at
least  seven  days  following  the  execution  of  such  agreement,  the
complainant may revoke the agreement, and the agreement shall not become
effective or be enforceable until such revocation period has expired.
  (C)  ANY  SUCH  TERM  OR CONDITION SHALL BE VOID TO THE EXTENT THAT IT
PROHIBITS OR OTHERWISE RESTRICTS THE COMPLAINANT FROM:  (I)  INITIATING,
TESTIFYING,  ASSISTING, COMPLYING WITH A SUBPOENA FROM, OR PARTICIPATING
IN ANY MANNER WITH AN INVESTIGATION CONDUCTED BY THE APPROPRIATE  LOCAL,
STATE,  OR FEDERAL AGENCY; OR (II) FILING OR DISCLOSING ANY FACTS NECES-
SARY TO RECEIVE UNEMPLOYMENT INSURANCE, MEDICAID, OR OTHER PUBLIC  BENE-
FITS TO WHICH THE COMPLAINANT IS ENTITLED.
  2. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, ANY PROVISION
IN  A  CONTRACT OR OTHER AGREEMENT BETWEEN AN EMPLOYER OR AN AGENT OF AN
EMPLOYER AND ANY EMPLOYEE OR POTENTIAL EMPLOYEE OF THAT EMPLOYER ENTERED
INTO ON OR AFTER JANUARY FIRST, TWO THOUSAND TWENTY, THAT  PREVENTS  THE
DISCLOSURE  OF  FACTUAL  INFORMATION  RELATED  TO  ANY  FUTURE  CLAIM OF
DISCRIMINATION IS VOID AND UNENFORCEABLE UNLESS SUCH PROVISION  NOTIFIES
THE  EMPLOYEE OR POTENTIAL EMPLOYEE THAT IT DOES NOT PROHIBIT HIM OR HER
FROM SPEAKING WITH LAW ENFORCEMENT,  THE  EQUAL  EMPLOYMENT  OPPORTUNITY
COMMISSION,  THE  STATE  DIVISION OF HUMAN RIGHTS, A LOCAL COMMISSION ON

A. 8421                             7

HUMAN RIGHTS, OR AN ATTORNEY  RETAINED  BY  THE  EMPLOYEE  OR  POTENTIAL
EMPLOYEE.
  §  8.  Paragraphs  2  and  3 of subdivision (a) of section 7515 of the
civil practice law and rules, as added by section 1 of subpart B of part
KK of chapter 57 of the laws of 2018, are amended to read as follows:
  2. The term "prohibited clause" shall mean any clause or provision  in
any  contract  which  requires  as a condition of the enforcement of the
contract or obtaining remedies  under  the  contract  that  the  parties
submit  to  mandatory  arbitration to resolve any allegation or claim of
[an unlawful discriminatory practice  of  sexual  harassment]  DISCRIMI-
NATION,  IN  VIOLATION OF LAWS PROHIBITING DISCRIMINATION, INCLUDING BUT
NOT LIMITED TO, ARTICLE FIFTEEN OF THE EXECUTIVE LAW.
  3. 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  matter  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 facts found or determination made by the
arbitrator or panel of arbitrators in its application to a party  alleg-
ing  [an  unlawful  discriminatory  practice based on sexual harassment]
DISCRIMINATION, IN VIOLATION OF LAWS PROHIBITING DISCRIMINATION, INCLUD-
ING BUT NOT LIMITED TO, ARTICLE FIFTEEN OF THE EXECUTIVE  LAW  shall  be
final and not subject to independent court review.
  §  9.  Section 5003-b of the civil practice law and rules, as added by
section 2 of subpart D of part KK of chapter 57 of the laws of 2018,  is
amended to read as follows:
  §  5003-b.  Nondisclosure agreements. Notwithstanding any other law to
the contrary, for any claim or cause of action,  whether  arising  under
common  law, equity, or any provision of law, the factual foundation for
which involves [sexual harassment] DISCRIMINATION, IN VIOLATION OF  LAWS
PROHIBITING  DISCRIMINATION,  INCLUDING  BUT  NOT  LIMITED  TO,  ARTICLE
FIFTEEN OF THE EXECUTIVE LAW, in resolving, by agreed  judgment,  stipu-
lation,  decree,  agreement  to  settle,  assurance of discontinuance or
otherwise, no employer, its officer or employee shall have the authority
to include or agree to include in such resolution any term or  condition
that  would  prevent  the disclosure of the underlying facts and circum-
stances to the claim or action unless the condition  of  confidentiality
is  the  plaintiff's  preference.  Any  such  term  or condition must be
provided to all parties, and the plaintiff shall have twenty-one days to
consider such term or condition. If after twenty-one days such  term  or
condition  is the plaintiff's preference, such preference shall be memo-
rialized in an agreement signed by all parties. For a period of at least
seven days following the execution of such agreement, the plaintiff  may
revoke the agreement, and the agreement shall not become effective or be
enforceable until such revocation period has expired.
  § 10. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
vision  9  as amended by chapter 359 of the laws of 1969, are amended to
read as follows:
  9. Bring and prosecute or defend  upon  request  of  the  [industrial]
commissioner  OF  LABOR or the state division of human rights, any civil
action or proceeding, the institution or defense of which in  his  judg-
ment  is  necessary  for effective enforcement of the laws of this state
against discrimination by reason of age, race, SEX, creed,  color  [or],
national  origin,  SEXUAL  ORIENTATION,  GENDER  IDENTITY OR EXPRESSION,
MILITARY STATUS, DISABILITY, PREDISPOSING GENETIC CHARACTERISTICS, FAMI-
LIAL STATUS, MARITAL STATUS, OR DOMESTIC VIOLENCE VICTIM STATUS, or  for

A. 8421                             8

enforcement  of any order or determination of such commissioner or divi-
sion made pursuant to such laws.
  10.  Prosecute  every person charged with the commission of a criminal
offense in violation of any of the laws of this state against  discrimi-
nation  because  of  AGE, race, SEX, creed, color, [or] national origin,
SEXUAL ORIENTATION, GENDER  IDENTITY  OR  EXPRESSION,  MILITARY  STATUS,
DISABILITY, PREDISPOSING GENETIC CHARACTERISTICS, FAMILIAL STATUS, MARI-
TAL STATUS, OR DOMESTIC VIOLENCE VICTIM STATUS, in any case where in his
judgment,  because of the extent of the offense, such prosecution cannot
be effectively carried on by the district attorney of the county wherein
the offense or a portion thereof is alleged to have been  committed,  or
where  in  his  judgment the district attorney has erroneously failed or
refused to prosecute. In all such proceedings, the attorney-general  may
appear  in  person or by his deputy or assistant before any court or any
grand jury and exercise all the powers and perform  all  the  duties  in
respect of such actions or proceedings which the district attorney would
otherwise be authorized or required to exercise or perform.
  §  11. Paragraph b of subdivision 1 of section 201-g of the labor law,
as added by section 1 of subpart E of part KK of chapter 57 of the  laws
of  2018,  is  amended  and  a  new  subdivision 2-a is added to read as
follows:
  b. Every employer shall adopt the model sexual  harassment  prevention
policy  promulgated  pursuant  to this subdivision or establish a sexual
harassment prevention policy to prevent sexual harassment that equals or
exceeds the minimum standards provided by such model  sexual  harassment
prevention  policy.  Such  sexual  harassment prevention policy shall be
provided to all employees in writing AS REQUIRED BY SUBDIVISION TWO-A OF
THIS SECTION. Such model sexual harassment prevention  policy  shall  be
publicly available and posted on the websites of both the department and
the division of human rights.
  2-A.  A. EVERY EMPLOYER SHALL PROVIDE HIS OR HER EMPLOYEES, IN WRITING
IN ENGLISH AND IN THE LANGUAGE IDENTIFIED BY EACH EMPLOYEE AS THE PRIMA-
RY LANGUAGE OF SUCH EMPLOYEE, AT THE TIME OF HIRING AND AT EVERY  ANNUAL
SEXUAL  HARASSMENT  PREVENTION TRAINING PROVIDED PURSUANT TO SUBDIVISION
TWO OF THIS SECTION, A NOTICE CONTAINING SUCH EMPLOYER'S SEXUAL  HARASS-
MENT  PREVENTION POLICY AND THE INFORMATION PRESENTED AT SUCH EMPLOYER'S
SEXUAL HARASSMENT PREVENTION TRAINING PROGRAM.
  B. THE COMMISSIONER  SHALL  PREPARE  TEMPLATES  OF  THE  MODEL  SEXUAL
HARASSMENT  PREVENTION POLICY CREATED AND PUBLISHED PURSUANT TO SUBDIVI-
SION ONE OF THIS SECTION AND  THE  MODEL  SEXUAL  HARASSMENT  PREVENTION
TRAINING  PROGRAM  PRODUCED PURSUANT TO SUBDIVISION TWO OF THIS SECTION.
THE COMMISSIONER SHALL  DETERMINE,  IN  HIS  OR  HER  DISCRETION,  WHICH
LANGUAGES  TO  PROVIDE  IN ADDITION TO ENGLISH, BASED ON THE SIZE OF THE
NEW YORK STATE POPULATION THAT SPEAKS EACH LANGUAGE AND ANY OTHER FACTOR
THAT THE COMMISSIONER SHALL DEEM RELEVANT. ALL SUCH TEMPLATES  SHALL  BE
MADE  AVAILABLE TO EMPLOYERS IN SUCH MANNER AS DETERMINED BY THE COMMIS-
SIONER.
  C. WHEN AN EMPLOYEE IDENTIFIES  AS  HIS  OR  HER  PRIMARY  LANGUAGE  A
LANGUAGE  FOR  WHICH  A TEMPLATE IS NOT AVAILABLE FROM THE COMMISSIONER,
THE EMPLOYER SHALL  COMPLY  WITH  THIS  SUBDIVISION  BY  PROVIDING  THAT
EMPLOYEE AN ENGLISH-LANGUAGE NOTICE.
  D.  AN  EMPLOYER SHALL NOT BE PENALIZED FOR ERRORS OR OMISSIONS IN THE
NON-ENGLISH PORTIONS OF ANY NOTICE PROVIDED BY THE COMMISSIONER.
  § 12. The commissioner of labor in collaboration with the commissioner
of human rights shall conduct a study on how to build  on  the  require-
ments of section two hundred one-g of the labor law, in order to further

A. 8421                             9

combat  unlawful  harassment  and  discrimination  in the workplace. The
study shall include but not be limited to: a review of the  section  two
hundred  one-g  of the labor law requirements for employers to provide a
sexual  harassment  training  and policy to all employees and comparison
with similar requirements across other jurisdictions; a  review  of  the
full scope of discriminatory practices in the workplace made unlawful by
relevant  state  and federal laws; engagement with relevant stakeholders
on the most effective tools to prevent and remediate such discriminatory
practices; and the efficacy of requiring such training in the  workplace
in  reducing  discrimination. On or before December 1, 2019, the commis-
sioner of labor shall submit  his  report  and  recommendations  to  the
governor,  the  temporary president of the senate and the speaker of the
assembly.
  § 13. Subdivision 5 of section 297 of the executive law, as amended by
chapter 958 of the laws of 1968, is amended to read as follows:
  5. Any complaint filed pursuant to this section must be so filed with-
in one year after the alleged unlawful discriminatory practice. IN CASES
OF SEXUAL HARASSMENT IN EMPLOYMENT, ANY COMPLAINT FILED PURSUANT TO THIS
SECTION MUST BE SO FILED WITHIN THREE YEARS AFTER THE  ALLEGED  UNLAWFUL
DISCRIMINATORY PRACTICES.
  § 14. Section 201-g of the labor law is amended by adding a new subdi-
vision 4 to read as follows:
  4. BEGINNING IN THE YEAR TWO THOUSAND TWENTY-TWO, AND EVERY SUCCEEDING
FOUR  YEARS THEREAFTER, THE DEPARTMENT IN CONSULTATION WITH THE DIVISION
OF HUMAN RIGHTS SHALL EVALUATE, USING THE CRITERIA WITHIN THIS  SECTION,
THE  IMPACT  OF  THE CURRENT MODEL SEXUAL HARASSMENT PREVENTION GUIDANCE
DOCUMENT AND SEXUAL HARASSMENT PREVENTION POLICY.   UPON THE  COMPLETION
OF  EACH EVALUATION THE DEPARTMENT SHALL UPDATE THE MODEL SEXUAL HARASS-
MENT PREVENTION GUIDANCE DOCUMENT AND SEXUAL HARASSMENT PREVENTION POLI-
CY AS NEEDED.
  § 15. Severability clause. If any clause, sentence, paragraph,  subdi-
vision, section or subpart of this act shall be adjudged by any court of
competent  jurisdiction  to  be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall  be  confined  in
its  operation  to the clause, sentence, paragraph, subdivision, section
or subject thereof directly involved in the controversy  in  which  such
judgment  shall  have  been  rendered.  It  is hereby declared to be the
intent of the legislature that this act would have been enacted even  if
such invalid provisions had not been included herein.
  § 16. This act shall take effect immediately, provided, however:
  (a)  Sections  one  of  this  act shall take effect on the one hundred
eightieth day after it shall have become a law.
  (b) Sections one-a, two, three, four, five, seven, eight and  nine  of
this  act  shall  take  effect  on  the sixtieth day after it shall have
become a law.
  (c) Section thirteen of this act shall take effect one year  after  it
shall have become a law.
  (d)  Sections  one,  one-a,  two,  three, four, five, six and thirteen
shall only apply to claims filed under such sections  on  or  after  the
effective date of such sections.
  (e)  Effective  immediately,  the addition, amendment and/or repeal of
any rule or regulation necessary for the implementation of this  act  on
its  effective date are authorized and directed to be made and completed
on or before such effective date.