S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4109
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 28, 2019
                                ___________
 
 Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 AN ACT to amend the state finance law, the civil practice law and rules,
   the public officers law, the general obligations law,  the  labor  law
   and the executive law, in relation to discrimination
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The section heading and paragraph (a) of subdivision  1  of
 section 139-l of the state finance law, as added by section 1 of subpart
 A  of  part KK of chapter 57 of the laws of 2018, are amended to read as
 follows:
   Statement on [sexual harassment] DISCRIMINATION, in bids.
   (a) Every bid hereafter made to the state or any public department  or
 agency  thereof,  where competitive bidding is required by statute, rule
 or regulation, for work or services performed  or  to  be  performed  or
 goods  sold  or  to  be  sold,  shall  contain  the  following statement
 subscribed by the bidder and affirmed by such bidder as true  under  the
 penalty of perjury:
   "By  submission  of  this  bid, each bidder and each person signing on
 behalf of any bidder certifies, and in the case  of  a  joint  bid  each
 party  thereto  certifies  as  to its own organization, under penalty of
 perjury, that the bidder  has  and  has  implemented  a  written  policy
 addressing  [sexual  harassment]  DISCRIMINATION prevention in the work-
 place and provides annual [sexual harassment] DISCRIMINATION  prevention
 training  to all of its employees. Such policy shall, at a minimum, meet
 the requirements of section two hundred one-g of the labor law."
   § 2. 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:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10167-01-9
              

 S. 4109                             2
 
   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.
   § 3. The section heading and subdivision 2  of  section  17-a  of  the
 public  officers  law,  as added by section 1 of subpart C of part KK of
 chapter 57 of the laws of 2018, are amended to read as follows:
   Reimbursement of funds paid by state agencies and state  entities  for
 the  payment of awards adjudicated in [sexual harassment] DISCRIMINATION
 claims.
   2. Notwithstanding any law to the contrary, any employee who has  been
 subject to a final judgment of personal liability for intentional wrong-
 doing  related  to  a  claim  of  [sexual harassment] DISCRIMINATION, IN
 VIOLATION OF LAWS PROHIBITING DISCRIMINATION, INCLUDING BUT NOT  LIMITED
 TO,  ARTICLE  FIFTEEN  OF  THE  EXECUTIVE LAW, shall reimburse any state
 agency or entity that makes a payment to a plaintiff for an  adjudicated
 award  based  on  a  claim  of  [sexual  harassment]  DISCRIMINATION, IN
 VIOLATION OF LAWS PROHIBITING DISCRIMINATION, INCLUDING BUT NOT  LIMITED
 TO,  ARTICLE  FIFTEEN  OF THE EXECUTIVE LAW resulting in a judgment, for
 his or her proportionate share of such  judgment.  Such  employee  shall
 personally  reimburse  such state agency or entity within ninety days of
 the state agency or entity's payment of such award.
   § 4. The section heading and subdivision 2  of  section  18-a  of  the
 public  officers  law,  as added by section 2 of subpart C of part KK of
 chapter 57 of the laws of 2018, are amended to read as follows:
   Reimbursement of funds paid by a public  entity  for  the  payment  of
 awards adjudicated in [sexual harassment] DISCRIMINATION claims.
   2.  Notwithstanding any law to the contrary, any employee who has been
 subject to a final judgment of personal liability for intentional wrong-
 doing related to a  claim  of  [sexual  harassment]  DISCRIMINATION,  IN
 VIOLATION  OF LAWS PROHIBITING DISCRIMINATION, INCLUDING BUT NOT LIMITED
 TO, ARTICLE FIFTEEN OF THE EXECUTIVE LAW,  shall  reimburse  any  public
 entity  that  makes  a  payment  to a plaintiff for an adjudicated award
 based on a claim of [sexual harassment] DISCRIMINATION, IN VIOLATION  OF
 LAWS  PROHIBITING  DISCRIMINATION, INCLUDING BUT NOT LIMITED TO, ARTICLE
 FIFTEEN OF THE EXECUTIVE LAW resulting in a judgment,  for  his  or  her
 proportionate  share  of  such  judgment. Such employee shall personally
 reimburse such public entity within ninety days of the  public  entity's
 payment of such award.
   § 5. 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:

 S. 4109                             3
 
   § 5-336. Nondisclosure agreements. 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, agreement 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. Any
 such term or  condition  must  be  provided  to  all  parties,  and  the
 complainant  shall  have twenty-one days to consider such term or condi-
 tion.  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.
   §  6.  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.
   §  7. 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  to  read  as
 follows:
   §  201-g.  Prevention  of  [sexual  harassment] DISCRIMINATION. 1. The
 department shall consult with the division of human rights to create and
 publish a model [sexual harassment] DISCRIMINATION  prevention  guidance
 document  and  [sexual  harassment prevention] DISCRIMINATION PREVENTION
 policy that employers may utilize in their adoption of [a sexual harass-
 ment prevention] THE policy required by this section.  FOR  PURPOSES  OF
 THIS  SECTION, "DISCRIMINATION" SHALL MEAN UNLAWFUL DISCRIMINATORY PRAC-
 TICE, AS DEFINED IN SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE  LAW
 AND/OR  DISCRIMINATION OR HARASSMENT BASED ON RACE, COLOR, SEX, NATIONAL
 ORIGIN, CREED, SEXUAL ORIENTATION, GENDER IDENTITY OR  EXPRESSION,  AGE,
 DISABILITY, MILITARY STATUS, FAMILIAL STATUS, MARITAL STATUS, PREDISPOS-
 ING GENETIC CHARACTERISTICS, OR DOMESTIC VIOLENCE VICTIM STATUS.
   a. Such model [sexual harassment prevention] DISCRIMINATION PREVENTION
 policy shall: (i) prohibit [sexual harassment] DISCRIMINATION consistent

 S. 4109                             4
 
 with guidance issued by the department in consultation with the division
 of  human  rights  and provide examples of prohibited conduct that would
 constitute unlawful [sexual harassment] DISCRIMINATION; (ii) include but
 not be limited to information concerning the federal and state statutory
 provisions  concerning  [sexual  harassment] DISCRIMINATION and remedies
 available to victims of [sexual harassment] DISCRIMINATION and a  state-
 ment  that  there may be applicable local laws; (iii) include a standard
 complaint form; (iv) include a procedure for the timely and confidential
 investigation of complaints and ensure due process for all parties;  (v)
 inform employees of their rights of redress and all available forums for
 adjudicating  [sexual  harassment] DISCRIMINATION complaints administra-
 tively and judicially;  (vi)  clearly  state  that  [sexual  harassment]
 DISCRIMINATION  is  considered  a  form  of employee misconduct and that
 sanctions will be  enforced  against  individuals  engaging  in  [sexual
 harassment]   DISCRIMINATION  and  against  supervisory  and  managerial
 personnel who knowingly allow  such  behavior  to  continue;  and  (vii)
 clearly  state  that  retaliation  against  individuals  who complain of
 [sexual harassment] DISCRIMINATION or  who  testify  or  assist  in  any
 proceeding under the law is unlawful.
   b.  Every employer shall adopt the model [sexual harassment] DISCRIMI-
 NATION prevention policy promulgated pursuant  to  this  subdivision  or
 establish  a  [sexual  harassment]  DISCRIMINATION  prevention policy to
 prevent [sexual harassment] DISCRIMINATION 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.  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.  The department shall consult with the division of human rights and
 produce a model [sexual harassment] DISCRIMINATION  prevention  training
 program to prevent [sexual harassment] DISCRIMINATION in the workplace.
   a. Such model [sexual harassment prevention] training program shall be
 interactive  and  include:    (i)  an explanation of [sexual harassment]
 DISCRIMINATION consistent with guidance  issued  by  the  department  in
 consultation with the division of human rights; (ii) examples of conduct
 that would constitute unlawful [sexual harassment] DISCRIMINATION; (iii)
 information  concerning  the  federal  and  state  statutory  provisions
 concerning [sexual harassment] DISCRIMINATION and remedies available  to
 victims  of  [sexual  harassment]  DISCRIMINATION;  and (iv) information
 concerning employees' rights of redress and  all  available  forums  for
 adjudicating complaints.
   b.  The  department  shall  include  information in such model [sexual
 harassment prevention] training program addressing conduct  by  supervi-
 sors and any additional responsibilities for such supervisors.
   c.  Every  employer  shall utilize [the] SUCH model [sexual harassment
 prevention] training program pursuant to this subdivision or establish a
 training program for employees to prevent [sexual harassment]  DISCRIMI-
 NATION  that  equals  or  exceeds the minimum standards provided by such
 model training. Such [sexual  harassment  prevention]  training  PROGRAM
 shall be provided to all employees on an annual basis.
   3.  The  commissioner  may  promulgate  regulations as he or she deems
 necessary for the purposes  of  carrying  out  the  provisions  of  this
 section.
   §  8.  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:

 S. 4109                             5
 
   § 296-d. [Sexual harassment] DISCRIMINATION relating to non-employees.
 It  shall  be  an  unlawful  discriminatory  practice for an employer to
 permit [sexual harassment] DISCRIMINATION OR HARASSMENT BASED  ON  RACE,
 COLOR,  SEX, NATIONAL ORIGIN, CREED, SEXUAL ORIENTATION, GENDER IDENTITY
 OR  EXPRESSION, AGE, DISABILITY, MILITARY STATUS, FAMILIAL STATUS, MARI-
 TAL STATUS, PREDISPOSING GENETIC CHARACTERISTICS, OR  DOMESTIC  VIOLENCE
 VICTIM  STATUS  of  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 workplace 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 harass-
 ment] DISCRIMINATION OR HARASSMENT BASED ON RACE, COLOR,  SEX,  NATIONAL
 ORIGIN,  CREED,  SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, AGE,
 DISABILITY, MILITARY STATUS, FAMILIAL STATUS, MARITAL STATUS, PREDISPOS-
 ING GENETIC CHARACTERISTICS, OR DOMESTIC VIOLENCE  VICTIM  STATUS,  when
 the  employer,  its agents or supervisors knew or should have known that
 such non-employee was subjected to [sexual harassment] DISCRIMINATION OR
 HARASSMENT BASED ON RACE, COLOR, SEX,  NATIONAL  ORIGIN,  CREED,  SEXUAL
 ORIENTATION,  GENDER  IDENTITY  OR EXPRESSION, AGE, DISABILITY, MILITARY
 STATUS, FAMILIAL STATUS, MARITAL STATUS, PREDISPOSING GENETIC CHARACTER-
 ISTICS, OR DOMESTIC VIOLENCE VICTIM STATUS in the employer's  workplace,
 and  the  employer  failed  to take immediate and appropriate corrective
 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  shall  be
 considered.
   §  9. 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.
   § 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
 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

 S. 4109                             6

 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. 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.
   § 12. This act shall take effect immediately; provided however:
   (a)  section one of this act shall take effect on the first of January
 next succeeding the date on which it shall have become a law;
   (b) sections two, five, and six of this act shall take effect  on  the
 ninetieth day after they shall have become a law; and
   (c)  section  seven  of  this act shall take effect on the one hundred
 eightieth day after it shall have become a law.
   (d) 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.