Senate Bill S357

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    357
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sens. HOYLMAN, SEPULVEDA -- read twice and ordered print-
   ed, 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 requiring employers to
   annually  report to the division of human rights the number of settle-
   ments with employees and other individuals performing services in  the
   workplace  regarding  claims  of  discrimination  on the basis of sex,
   including verbal and physical sexual harassment; providing  for  legal
   remedies  for  violations  of the reporting requirement; requiring the
   division of human rights to provide an annual report to  the  governor
   and the legislature; and to make conforming technical changes
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Sections 300 and 301 of the executive  law  are  renumbered
 sections 308 and 309.
   §  2. The executive law is amended by adding a new section 300 to read
 as follows:
   § 300. REPORTING  OF  WORKPLACE  SEXUAL  HARASSMENT  CLAIMS.  1.  EACH
 EMPLOYER SUBJECT TO THE PROVISIONS OF THIS ARTICLE SHALL ANNUALLY REPORT
 TO  THE  DIVISION THE TOTAL NUMBER OF SETTLEMENTS REACHED WITH EMPLOYEES
 AND NON-EMPLOYEES REGARDING THE RESOLUTION OF CLAIMS  OF  DISCRIMINATION
 ON THE BASIS OF SEX, INCLUDING VERBAL AND PHYSICAL SEXUAL HARASSMENT.
   2.  SETTLEMENTS  REQUIRED  TO  BE  REPORTED  UNDER  THIS SECTION SHALL
 INCLUDE  ANY  AGREEMENT  OR  ARRANGEMENT  WHERE  ANYTHING  OF  VALUE  IS
 CONFERRED  TO  THE INDIVIDUAL RAISING THE CLAIM IN RETURN FOR SUCH INDI-
 VIDUAL DECLINING TO FURTHER PURSUE THE CLAIM, AND ANY INTERNAL MEDIATION
 OR OTHER WORKPLACE RESOLUTION THAT RESULTS IN THE  INDIVIDUAL  DECLINING
 TO FURTHER PURSUE THE CLAIM.
   3.  CLAIMS  OF DISCRIMINATION ON THE BASIS OF SEX INCLUDE, BUT ARE NOT
 LIMITED TO, CLAIMS OF THE FOLLOWING:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02842-01-1

 S. 357                              2
 
   (A) INAPPROPRIATE OR UNWANTED TOUCHING;
   (B) VERBAL COMMENTS ABOUT SEX OR OF A SEXUAL NATURE, WHICH MAY INCLUDE
 COMMENTS  TO  AN  INDIVIDUAL  ABOUT  THE  INDIVIDUAL'S BODY OR SEXUAL OR
 ROMANTIC ACTIVITY OR THE BODY OR SEXUAL  OR  ROMANTIC  ACTIVITY  OF  THE
 INDIVIDUAL MAKING THE COMMENTS;
   (C)  REFERRING TO ANOTHER INDIVIDUAL BY A NAME OR NICKNAME OF A ROMAN-
 TIC, DEMEANING, OR SEXUAL NATURE;
   (D) INAPPROPRIATE GESTURES OF A SEXUAL NATURE;
   (E) UNWANTED PROPOSALS FOR SEXUAL ACTIVITY;
   (F) SHOWING ANOTHER INDIVIDUAL PHOTOS OR OTHER IMAGES THAT ARE SEXUAL-
 LY EXPLICIT OR ARE OTHERWISE OF A SEXUAL NATURE; AND
   (G) UNDUE ATTENTION TO OR QUESTIONS ABOUT A PERSON'S SEXUAL  RELATION-
 SHIPS, SEXUAL HISTORY, SEXUAL ORIENTATION, OR GENDER IDENTITY.
   4.  REPORTS REQUIRED TO BE SUBMITTED PURSUANT TO THIS SECTION SHALL BE
 ON FORMS AND ACCORDING TO SUCH PROCEDURES AS THE DIVISION  SHALL  ESTAB-
 LISH.
   5.  (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR ANY PERSON
 ENGAGED IN ANY ACTIVITY TO WHICH THIS SECTION APPLIES  TO  RETALIATE  OR
 DISCRIMINATE AGAINST AN INDIVIDUAL BECAUSE THE INDIVIDUAL HAS:
   (1)  INQUIRED  ABOUT  AN  EMPLOYER'S COMPLIANCE WITH THE PROVISIONS OF
 THIS SECTION;
   (2) COMPLAINED  ABOUT  AN  EMPLOYER'S  LACK  OF  COMPLIANCE  WITH  THE
 PROVISIONS OF THIS SECTION; OR
   (3)  REPORTED  AN EMPLOYER'S LACK OF COMPLIANCE WITH THE PROVISIONS OF
 THIS SECTION TO  THE  DIVISION  OR  TO  ANOTHER  AGENCY,  INCLUDING  LAW
 ENFORCEMENT AGENCIES.
   (B)  IN  ADDITION TO CIVIL RIGHTS PROTECTIONS AND REMEDIES FOR RETALI-
 ATION AVAILABLE UNDER  THIS  ARTICLE,  ANY  EMPLOYER  WHO  VIOLATES  THE
 PROVISIONS  OF  PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE LIABLE TO ANY
 AFFECTED EMPLOYEE OR NON-EMPLOYEE FOR:
   (1) DAMAGES EQUAL TO THE AMOUNT OF ANY WAGES, SALARY, EMPLOYMENT BENE-
 FITS, OR OTHER COMPENSATION DENIED TO OR LOST BY SUCH EMPLOYEE BY REASON
 OF THE VIOLATION;
   (2) THE INTEREST ON THE AMOUNT DESCRIBED IN SUBPARAGRAPH ONE  OF  THIS
 PARAGRAPH  CALCULATED  AT  THE APPLICABLE INTERNAL REVENUE SERVICE (IRS)
 QUARTERLY INTEREST RATES USED TO COMPUTE BACK PAY;
   (3) AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO THE SUM OF THE
 AMOUNT DESCRIBED IN SUBPARAGRAPH  ONE  AND  THE  INTEREST  DESCRIBED  IN
 SUBPARAGRAPH TWO OF THIS PARAGRAPH; AND
   (4)  SUCH  EQUITABLE  RELIEF  AS MAY BE APPROPRIATE, INCLUDING BUT NOT
 LIMITED TO, EMPLOYMENT, REINSTATEMENT AND PROMOTION.
   (C) AN ACTION TO RECOVER THE DAMAGES OR EQUITABLE RELIEF PRESCRIBED IN
 PARAGRAPH (B) OF THIS SUBDIVISION MAY BE MAINTAINED AGAINST ANY EMPLOYER
 IN ANY FEDERAL OR STATE COURT OF COMPETENT JURISDICTION BY  ANY  ONE  OR
 MORE EMPLOYEES FOR AND ON BEHALF OF:
   (1) THE AFFECTED EMPLOYEE OR EMPLOYEES; OR
   (2)  THE  AFFECTED EMPLOYEE OR EMPLOYEES AND OTHER EMPLOYEES SIMILARLY
 SITUATED.
   (D) THE COURT IN SUCH AN ACTION SHALL, IN  ADDITION  TO  ANY  JUDGMENT
 AWARDED  TO  THE PLAINTIFF, ALLOW REASONABLE ATTORNEYS' FEES, REASONABLE
 EXPERT WITNESS FEES, AND OTHER COSTS OF THE ACTION TO  BE  PAID  BY  THE
 DEFENDANT.
   6.  (A)  NOTHING  IN THIS SECTION SHALL BE CONSTRUED TO INTERFERE WITH
 THE RIGHT OF AN EMPLOYEE OR NON-EMPLOYEE TO ENTER INTO A CONFIDENTIALITY
 OR NON-DISCLOSURE AGREEMENT WITH HIS OR HER EMPLOYER WITH RESPECT  TO  A
 CLAIM  OF DISCRIMINATION ON THE BASIS OF SEX, INCLUDING VERBAL AND PHYS-

 S. 357                              3
 
 ICAL SEXUAL HARASSMENT, THE INVESTIGATION OF SUCH A CLAIM, OR  THE  OUT-
 OF-COURT SETTLEMENT OF SUCH A CLAIM.
   (B) AN EMPLOYER MAY NOT USE A CONFIDENTIALITY OR NON-DISCLOSURE AGREE-
 MENT DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION AS A BASIS FOR FAIL-
 ING  OR  REFUSING  TO SUBMIT TO THE DIVISION THE INFORMATION REQUIRED BY
 SUBDIVISIONS ONE AND TWO OF THIS SECTION.
   (C) A CONFIDENTIALITY OR  NON-DISCLOSURE  AGREEMENT  AS  DESCRIBED  IN
 PARAGRAPH  (A) OF THIS SUBDIVISION SHALL NOT BE CONSTRUED AS PROHIBITING
 ANY PARTY TO SUCH AGREEMENT FROM COOPERATING WITH LAW ENFORCEMENT INVES-
 TIGATIONS INTO ANY CLAIMS OF DISCRIMINATION ON THE BASIS OF SEX, INCLUD-
 ING VERBAL AND PHYSICAL SEXUAL HARASSMENT.
   7. AS USED IN THIS SECTION:
   (A) "EMPLOYER" INCLUDES ALL EMPLOYERS WITHIN THE STATE; AND
   (B) "NON-EMPLOYEE" MEANS A PERSON OTHER THAN AN EMPLOYEE WHO  PROVIDES
 SERVICES  PURSUANT  TO  A  CONTRACT OR OTHER AGREEMENT IN THE WORKPLACE,
 INCLUDING BUT NOT LIMITED  TO,  A  VENDOR,  CONSULTANT,  FREE-LANCER  OR
 EMPLOYEE OF A TEMPORARY OR STAFFING AGENCY.
   §  3.  Section  295  of  the  executive law is amended by adding a new
 subdivision 17 to read as follows:
   17. ANNUALLY, ON OR BEFORE APRIL FIRST, THE DIVISION SHALL  SUBMIT  TO
 THE  GOVERNOR  AND  TO  THE LEGISLATURE, AND SHALL MAKE AVAILABLE TO THE
 PUBLIC ON ITS WEBSITE, A REPORT  CONTAINING  THE  FOLLOWING  INFORMATION
 RELATING  TO  CLAIMS  OF  DISCRIMINATION  ON THE BASIS OF SEX, INCLUDING
 VERBAL AND PHYSICAL SEXUAL HARASSMENT:
   (A) THE NUMBER OF SETTLEMENTS THAT WERE REPORTED TO  THE  DIVISION  AS
 DEFINED BY AND REPORTED PURSUANT TO THIS SECTION;
   (B)  THE NUMBER OF CHARGES ALLEGING DISCRIMINATION ON THE BASIS OF SEX
 THAT WERE REPORTED TO THE DIVISION, FROM ANY  SOURCE,  INCLUDING  VERBAL
 AND PHYSICAL SEXUAL HARASSMENT MADE DIRECTLY TO THE DIVISION; AND
   (C)  A SUMMARY OF ANY ACTION TAKEN BY THE DIVISION BASED UPON ANY SUCH
 CHARGES OR COMPLAINTS COLLECTED PURSUANT TO THIS SECTION, SUCH AS  LITI-
 GATION OR SETTLEMENTS FACILITATED BY THE DIVISION PERTAINING TO DISCRIM-
 INATION  ON  THE  BASIS  OF  SEX,  INCLUDING  VERBAL AND PHYSICAL SEXUAL
 HARASSMENT, INCLUDING  A  BRIEF  DESCRIPTION  OF  ANY  OUTCOME  OF  SUCH
 ACTIONS.
   §  4. This act shall take effect on the first of January next succeed-
 ing the date upon which it shall have become a law. Effective immediate-
 ly the addition, amendment and/or  repeal  of  any  rule  or  regulation
 necessary  for  the implementation of this act on its effective date are
 authorized to be made on or before such date.