NY State Senate Bill 2021-S5870

Senate Bill S5870

Signed By Governor

2021-2022 Legislative Session

Relates to prohibiting certain retaliatory action against unlawful discriminatory practices by employers

download bill text pdf

Archive: Last Bill Status - Signed by Governor

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

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 16, 2022	signed chap.140
Mar 15, 2022	delivered to governor
Mar 02, 2022	returned to senate passed assembly ordered to third reading cal.432 substituted for a7101
Mar 01, 2022	referred to codes delivered to assembly passed senate
Feb 03, 2022	advanced to third reading
Feb 02, 2022	2nd report cal.
Feb 01, 2022	1st report cal.389
Jan 05, 2022	referred to investigations and government operations returned to senate died in assembly
Jun 03, 2021	referred to governmental operations delivered to assembly passed senate
May 19, 2021	advanced to third reading
May 12, 2021	2nd report cal.
May 11, 2021	1st report cal.1065
Mar 19, 2021	referred to investigations and government operations

Votes

- Mar 1, 2022 - Floor Vote
  S5870
  
  63
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Mar 1, 2022
      
      aye (63)
      
      Addabbo Jr.
      
      Akshar
      
      Bailey
      
      Biaggi
      
      Borrello
      
      Boyle
      
      Breslin
      
      Brisport
      
      Brooks
      
      Brouk
      
      Cleare
      
      Comrie
      
      Cooney
      
      Felder
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Jordan
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Lanza
      
      Liu
      
      Mannion
      
      Martucci
      
      Mattera
      
      May
      
      Mayer
      
      Myrie
      
      O'Mara
      
      Oberacker
      
      Ortt
      
      Palumbo
      
      Parker
      
      Persaud
      
      Ramos
      
      Rath III
      
      Reichlin-Melnick
      
      Ritchie
      
      Rivera
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stec
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      Weik
  Feb 1, 2022 - Investigations And Government Operations Committee Vote
  S5870
  
  7
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Investigations And Government Operations Committee Vote: Feb 1, 2022
      
      aye (7)
      
      Biaggi
      
      Gaughran
      
      Kaminsky
      
      O'Mara
      
      Palumbo
      
      Reichlin-Melnick
      
      Skoufis

co-Sponsors

View additional co-sponsors

2021-S5870 (ACTIVE) - Details

See Assembly Version of this Bill:: A7101
Law Section:: Executive Law
Laws Affected:: Amd §§296 & 297, Exec L
Versions Introduced in 2021-2022 Legislative Session:: S5870, A7101

2021-S5870 (ACTIVE) - Summary

Prohibits the release of personnel or employees as a retaliatory action against employees who complain or assist in proceedings involving unlawful discriminatory practices by employers.

2021-S5870 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5870

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the executive law, in relation to retaliation against
certain unlawful discriminatory practices by employers

 
PURPOSE OR GENERAL IDEA OF BILL:

To clarify that release of personnel records to discount victims of
workplace discrimination counts as a retaliatory action under the Human
Rights Law and to provide additional recourse to victims of such retali-
ation

 
SUMMARY OF PROVISIONS:

Section one of this bill amends subdivision 7 of section 296 of the
Executive Law to provide that the retaliation prohibited therein shall
include release of personnel records, except in cases where such release
is necessary to respond to a complaint, civil or criminal action, or

judicial or administrative proceeding.

Section two of this bill amends subsection 9 of section 297 of the Exec-
utive Law to provide that the Attorney General may commence an action
if, upon information or belief, he or she believes that an employer has
violated or is about to violate the provisions of section one of this
bill. Nothing in this section shall limit the rights and remedies other-
wise available to victims of retaliation, however, which may include
filing a complaint with the Governor's Office of Employee Relations, the
Joint Commission on Public Ethics, the State Division of Human Rights,
the United States Equal Employment Opportunity Commission, the State
Department of Labor, or a local police department in the event of a
criminal allegation, or from pursuing a civil action in state or federal
court.

Section three provides the effective date.

 
JUSTIFICATION:

Article 15 of the Executive Law, the state's Human Rights Law, prohibits
discrimination based on protected class status (age, race, creed, color,
national origin, sexual orientation, gender identity or expression,
military status, sex, disability, predisposing genetic characteristiscs,
familial status, marital status, or status as a victim of domestic
violence) in the workplace for all employees and independent contrac-
tors, vendors, and consultants providing workplace services. Subdivision
7 of section 296 of the Executive Law further prohibits retaliation
against victims of workplace discrimination if they oppose such discrim-
ination or file a complaint, testify, or otherwise assist with an inves-
tigation. As demonstrated by recent events, this retaliation frequently
appears in the form of a leaking of personnel files with the intent to
disparage or discredit a victim or witness of discrimination in the
workplace.  This bill would clarify that the release of these files
because of the employee's filing of a complaint or cooperation with an
investigation counts as retaliation and is completely prohibited under
the Human Rights Law, except where such release is necessary to comply
with an investigation or an administrative or judicial proceeding.

This bill further provides additional recourse to victims of unlawful
retaliation by allowing them to file a complaint with the Attorney
General who may commence a proceeding in state Supreme Court if he or
she has found an employer to be in violation § 296(7). While the exist-
ing avenues for recourse available to victims of gender discrimination
are varied, including filing a complaint with the NYS Joint Commission
on Public Ethics (JCOPE), the NYS Division of Human Rights (DHR), the
NYS Department of Labor (DOL), or the Governor's Office of Employee
Relations (GOER), three of these entities are executive agencies whose
commissioners or directors are appointed by the governor, assuring
virtually no independence when he himself may be the target of a
complaint. The fourth entity, JCOPE, which was founded expressly to root
out corruption and abuse among members of the legislative and executive
branches, has faced criticism as a deeply political institution that is
itself prone to cronyism and influence from the Executive. Additionally,
many victims may not have resources or be emotionally prepared to pursue
a case in civil court, and police authorities only have purview over
conduct that rises to the level of a crime.  It is appropriate, there-
fore, that an independently elected Attorney General be granted the
explicit authority to investigate and pursue claims of retaliation under
Executive Law § 296(7). These investigations could fit neatly into the
jurisdiction of the existing Civil Rights Bureau at the Office of the
Attorney General, which can currently only pursue actions for wider
patterns of abuse affecting a significant number of people. This bill
would clarify that the Attorney General can commence actions in the
State Supreme Court "upon information or belief' that individuals are
being retaliated against for filing a complaint or cooperating with an
investigation into workplace harassment. It is the sponsor's hope that
these reforms will disincentivize retaliation under the Human Rights Law
and provide additional recourse to victims of such retaliation.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
Immediate

2021-S5870 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5870
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 19, 2021
                                ___________
 
 Introduced by Sen. GOUNARDES -- 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 executive law, in relation to retaliation against
   certain unlawful discriminatory practices by employers

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  7  of  section  296 of the executive law, as
 amended by chapter 166 of the laws  of  2000,  is  amended  to  read  as
 follows:
   7.  It  shall  be  an  unlawful discriminatory practice for any person
 engaged in any activity to which this section applies  to  retaliate  or
 discriminate  against any person because he or she has opposed any prac-
 tices forbidden under this article or because he  or  she  has  filed  a
 complaint,  testified  or assisted in any proceeding under this article.
 RETALIATION MAY INCLUDE, BUT IS NOT LIMITED TO, DISCLOSING AN EMPLOYEE'S
 PERSONNEL FILES BECAUSE HE OR SHE HAS OPPOSED  ANY  PRACTICES  FORBIDDEN
 UNDER THIS ARTICLE OR BECAUSE HE OR SHE HAS FILED A COMPLAINT, TESTIFIED
 OR  ASSISTED  IN  ANY  PROCEEDING  UNDER THIS ARTICLE, EXCEPT WHERE SUCH
 DISCLOSURE IS MADE IN THE  COURSE  OF  COMMENCING  OR  RESPONDING  TO  A
 COMPLAINT  IN  ANY  PROCEEDING  UNDER THIS ARTICLE OR ANY OTHER CIVIL OR
 CRIMINAL ACTION  OR  OTHER  JUDICIAL  OR  ADMINISTRATIVE  PROCEEDING  AS
 PERMITTED BY APPLICABLE LAW.
   §  2. Subdivision 9 of section 297 of the executive law, as separately
 amended by chapter 160 of the laws of 2019 and chapter 236 of  the  laws
 of 2020, is amended to read as follows:
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD10544-01-1

 S. 5870                             2
 
 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]
 ARTICLE, provided that, where the division has dismissed such  complaint
 on  the grounds of administrative convenience, on the grounds of untime-
 liness, 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 stat-
 ute of 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. In cases of housing
 discrimination only, a person whose complaint has been dismissed by  the
 division  after investigation for lack of jurisdiction or lack of proba-
 ble cause may file the same cause of action in a  court  of  appropriate
 jurisdiction  pursuant  to  this section, unless judicial review of such
 dismissal has been sought pursuant to section two  hundred  ninety-eight
 of  this article.  THE ATTORNEY GENERAL SHALL HAVE THE POWER TO COMMENCE
 AN ACTION OR PROCEEDING IN THE SUPREME COURT OF THE STATE OF  NEW  YORK,
 IF,  UPON  INFORMATION OR BELIEF, THE ATTORNEY GENERAL IS OF THE OPINION
 THAT AN EMPLOYER HAS BEEN, IS, OR IS ABOUT  TO  VIOLATE  THE  PROVISIONS
 REGARDING  UNLAWFUL  DISCRIMINATORY  RETALIATION PURSUANT TO SUBDIVISION
 SEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THIS ARTICLE. NOTHING IN THIS
 SECTION SHALL IN ANY WAY LIMIT RIGHTS OR REMEDIES  WHICH  ARE  OTHERWISE
 AVAILABLE  UNDER LAW TO THE ATTORNEY GENERAL OR ANY OTHER PERSON AUTHOR-
 IZED TO BRING AN ACTION UNDER THIS SECTION.
   § 3. This act shall take effect immediately.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.