NY State Senate Bill 2019-S3377

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to investigations and government operations
Feb 06, 2019	referred to investigations and government operations

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2019-S3377 (ACTIVE) - Details

See Assembly Version of this Bill:: A7167
Current Committee:: Senate Investigations And Government Operations
Law Section:: Executive Law
Laws Affected:: Amd §§296 & 292, Exec L

2019-S3377 (ACTIVE) - Summary

Prohibits sexual harassment by employers.

2019-S3377 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S3377

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the executive law, in relation to unlawful discriminato-
ry practices involving sexual harassment

 
PURPOSE OR GENERAL IDEA OF BILL:

This legislation will strengthen the current sexual harassment laws to
victims of sexual harassment protection from unlawful discriminatory
practices when the complaint is filed, regardless of the level of perva-
siveness or severity of the alleged conduct.

 
SUMMARY OF PROVISIONS:

Section one of this bill adds three new subdivisions, 1-b, 22 and 23, to
Executive Law section 296. New subdivision 1-b provides that is shall be
an unlawful discriminatory practice for an employer to sexually harass
an employee when (1) submission to such conduct is an explicit or

implicit term or condition of the target employee's employment, (2)
submission to or rejection of such conduct will be used as a basis of
employment decisions affecting the target employee, or (3) such conduct
creates a hostile work environment that adversely affects the target
employee's work performance.

New subdivision 22 provides that in cases brought under the State's
Human Rights Law, when a person alleges that he or she was deprived of
equal terms and conditions of employment due to an unlawful discrimina-
tory practice on the basis of sex or sexual harassment, and demonstrates
that the conduct that forms the basis of the complaint was motivated by
the complainant's sex, liability for the alleged unlawful discriminatory
act will attach at the time the complaint is filed, regardless of the
level of pervasiveness or severity of the discrimination or harassment.

New subdivision 23 provides that it is not a full or partial defense
that the complainant did not follow any established complaint procedure
or complain about the unlawful discriminatory practice on the basis of
sex or sexual harassment when the person to whom the complainant would
be required to complain is the person whose conduct is the subject of
the complaint.

Section two of this bill amends Executive Law section 292(5) to clarify
that the definition of the term "employer" shall, for the purposes of
Executive Law section 296(1-b), all employers in the State.

Section three of this bill provides the Division of Human Rights with
the power to promulgate, repeal or amend rules to implement the
provisions of this bill on an emergency basis.

Section four of this bill provides that this act shall take effect imme-
diately.

 
EXISTING LAW:

Currently, sexual harassment is not specifically listed as an unlawful
discriminatory act under the State's Human Rights Law.

 
JUSTIFICATION:

For years, victims of sexual harassment in the workplace had no
protection or meaningful recourse. Frequently, the harasser was a person
in a position to significantly damage or end the victim's career if the
victim reported the harassment.

In his Executive Budget, the Governor included an amendment to the State
Human Rights Law that would make "harassment on the basis of any
protected characteristic" an unlawful discriminatory practice.  Unfortu-
nately, the Governor did not define what constitutes harassment, instead
his proposal relies upon case law for the definition. Because courts
decide cases every work day, no one can be certain exactly what types of
conduct would be considered to be harassment. This bill, on the other
hand, clearly states what constitutes sexual harassment.

Victims of workplace sexual harassment who come forward and report the
harassment face an uphill battle. Questions still exist regarding wheth-
er all sexually harassing conduct is considered a prohibited discrimina-
tory practice or if the sexual harassment needs to rise to a certain
level before it becomes actionable under the State Human Rights Law.

It was not until sexual harassment victims courageously came out of the
shadows to share their experiences and the high burden of proof that
they had to reach. This legislation clarifies that in New York workplace
sexual harassment will not be tolerated and lowers the standard of
proof. Once enacted, the New York State standard and the New York City
standard for proving sexual harassment will be closely aligned.

Victims will be protected from unlawful discriminatory practices upon
filing the complaint, regardless of the level of pervasiveness or sever-
ity of the alleged conduct.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S3377 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3377
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 6, 2019
                                ___________
 
 Introduced by Sens. GOUNARDES, KRUEGER, BIAGGI -- read twice and ordered
   printed, and when printed to be committed to the Committee on Investi-
   gations and Government Operations
 
 AN ACT to amend the executive law, in relation to unlawful discriminato-
   ry practices involving sexual harassment

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Section 296 of the executive  law  is  amended  by  adding
 three new subdivisions 1-b, 22 and 23 to read as follows:
   1-B.  IT  SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER
 TO:
   (A) ENGAGE IN UNWELCOME SEXUAL ADVANCES  TOWARDS,  MAKE  REQUESTS  FOR
 SEXUAL  FAVORS  FROM, OR ENGAGE IN OTHER VERBAL OR PHYSICAL CONDUCT OF A
 SEXUAL OR SEX-BASED NATURE WITH AN EMPLOYEE WHEN: (I) SUBMISSION TO SUCH
 CONDUCT IS MADE EITHER EXPLICITLY OR IMPLICITLY A TERM OR  CONDITION  OF
 AN  INDIVIDUAL'S  EMPLOYMENT;  (II)  SUBMISSION  TO OR REJECTION OF SUCH
 CONDUCT BY AN INDIVIDUAL IS USED AS THE BASIS FOR  EMPLOYMENT  DECISIONS
 AFFECTING  SUCH  INDIVIDUAL;  OR  (III)  SUCH CONDUCT HAS THE PURPOSE OR
 EFFECT OF INTERFERING WITH AN INDIVIDUAL'S WORK PERFORMANCE BY  CREATING
 AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRONMENT.
   (B) FOR THE PURPOSES OF THIS SUBDIVISION, "EMPLOYER" SHALL INCLUDE ANY
 INDIVIDUAL  WHO  MAY  HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE,
 DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR HAS RESPON-
 SIBILITY TO DIRECT THEM OR EFFECTIVELY RECOMMEND SUCH ACTION, IF THE USE
 OF SUCH AUTHORITY IS NOT MERELY  ROUTINE  OR  CLERICAL  IN  NATURE,  BUT
 REQUIRES THE USE OF INDEPENDENT JUDGMENT.
   22.  IN ANY CASE BROUGHT PURSUANT TO THE PROVISIONS OF THIS ARTICLE ON
 THE BASIS OF SEX OR SEXUAL HARASSMENT ONLY, WHERE A PERSON ALLEGES  THAT
 A  COVERED ENTITY HAS DEPRIVED SUCH PERSON OF EQUAL TERMS AND CONDITIONS
 OF EMPLOYMENT, LIABILITY FOR SUCH ALLEGED  UNLAWFUL  DISCRIMINATORY  ACT
 SHALL  ATTACH  WHERE  THE COMPLAINANT OR PLAINTIFF DEMONSTRATES THAT THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD06473-02-9

 S. 3377                             2
 
 CONDUCT COMPLAINED OF WAS MOTIVATED IN WHOLE OR IN PART BY THE  PERSON'S
 SEX,  REGARDLESS  OF  THE  LEVEL  OF  PERVASIVENESS  OR  SEVERITY OF THE
 DISCRIMINATION OR HARASSMENT. A COVERED ENTITY  MAY  DEMONSTRATE  AS  AN
 AFFIRMATIVE  DEFENSE  TO LIABILITY PURSUANT TO THIS SUBDIVISION THAT THE
 DISCRIMINATION OR HARASSMENT COMPLAINED OF CONSISTED OF NO GREATER  THAN
 WHAT  A REASONABLE VICTIM OF DISCRIMINATION OR HARASSMENT WOULD CONSIDER
 PETTY SLIGHTS AND TRIVIAL ANNOYANCES.
   23. IN ANY CASE BROUGHT PURSUANT TO THE PROVISIONS OF THIS ARTICLE  ON
 THE BASIS OF SEX OR SEXUAL HARASSMENT ONLY, IT SHALL NOT BE DEFENSE OR A
 PARTIAL  DEFENSE  THAT THE EMPLOYEE FAILED TO COMPLAIN ABOUT, OR UTILIZE
 ANY PARTICULAR COMPLAINT PROCEDURE  TO  COMPLAIN  ABOUT,  SUCH  UNLAWFUL
 DISCRIMINATORY ACT OR ACTS WHEN THE PERSON TO WHOM THE EMPLOYEE WOULD OR
 WOULD BE REQUIRED TO COMPLAIN IS THE PERSON WHOSE CONDUCT IS THE SUBJECT
 OF THE COMPLAINT.
   §  2. 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]  OR,  IN  THE CASE OF sexual harassment [only,] PURSUANT TO
 SUBDIVISION ONE-B OF SECTION TWO HUNDRED NINETY-SIX OF THIS ARTICLE, the
 term "employer" shall include all employers within the state.
   § 3. The division of human rights shall be authorized  to  promulgate,
 amend  or repeal rules or regulations on an emergency basis to implement
 the provisions of this act.
   § 4. This act shall take effect immediately.

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Senate Bill S3377

Sponsored By

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

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co-Sponsors

2019-S3377 (ACTIVE) - Details

2019-S3377 (ACTIVE) - Summary

2019-S3377 (ACTIVE) - Sponsor Memo

2019-S3377 (ACTIVE) - Bill Text download pdf

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Sponsored By

Andrew Gounardes

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Actions

co-Sponsors

Liz Krueger

Alessandra Biaggi

David Carlucci

John C. Liu

2019-S3377 (ACTIVE) - Details

2019-S3377 (ACTIVE) - Summary

2019-S3377 (ACTIVE) - Sponsor Memo

2019-S3377 (ACTIVE) - Bill Text download pdf

Comments