S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1788
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 20, 2023
                                ___________
 
 Introduced  by  M.  of  A. L. ROSENTHAL -- read once and referred to the
   Committee on Governmental Operations
 
 AN ACT to amend the executive law, in relation to the awarding of  puni-
   tive damages to persons aggrieved by sexual harassment
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph c of subdivision 4 and subdivision 9  of  section
 297  of  the  executive  law, paragraph c of subdivision 4 as amended by
 chapter 160 of the laws of 2019 and subdivision 9 as amended by  chapter
 140 of the laws of 2022,  are amended to read as follows:
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06691-01-3
              

 A. 1788                             2
 
 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
 of employment discrimination related to private employers, and, in cases
 of housing discrimination, 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 discriminatory act, or
 not to exceed one hundred thousand dollars to be paid to the state by  a
 respondent  found to have committed an unlawful discriminatory act which
 is found to be willful, wanton or malicious; (vii) requiring a report of
 the manner of compliance; AND (VIII) AWARDING OF  PUNITIVE  DAMAGES,  IN
 CASES  OF  SEXUAL HARASSMENT ONLY, TO THE PERSON AGGRIEVED BY SUCH PRAC-
 TICE.  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 complainant 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 general, the secretary of state, if he or she has issued
 a license to the respondent, and such other public officers as the divi-
 sion 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 paragraph 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 prop-
 er, 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  AND  SEXUAL
 HARASSMENT  only,  punitive  damages,  and such other remedies as may be
 appropriate, including any civil fines and penalties provided in  subdi-
 vision  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 nine-
 ty-six-a  of  this  article,  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
 A. 1788                             3
 
 person's election of an administrative remedy is annulled. Notwithstand-
 ing 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 appropri-
 ate jurisdiction shall be limited  by  the  statute  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 determination 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 oppor-
 tunity  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 subdivision. 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 probable 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 pursu-
 ant  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 nine-
 ty-six of this article. Nothing in this section shall in any  way  limit
 rights or remedies which are otherwise available under law to the attor-
 ney general or any other person authorized to bring an action under this
 section.
   §  2.  This  act shall take effect on the ninetieth day after it shall
 have become a law.