Ensure Equal Opportunity for Workers

Section 1. The executive law is amended by adding a new article 14-A to read as follows:

ARTICLE 14-A

STATE EMPLOYEES EQUAL EMPLOYMENT OPPORTUNITY ACT Section 280. Purposes of article.

280-a. Definitions.

280-b. Policies.

280-c. Agency program.

280-d. Agency processing.

280-e. Pre-complaint processing.

280-f. Individual complaints.

280-g. Dismissals of complaints.

280-h. Investigation of complaints.

280-i. Hearings.

280-j. Class complaints.

280-k. Relationship to negotiated grievance procedure.

280-l. Appeals to the commission.

280-m. Decisions on appeals.

280-n. Remedies and relief.

280-o. Compliance with final decisions.

280-p. Enforcement of final decisions.

280-q. Interim relief.

280-r. Joint processing and consolidation of complaints.

280-s. Appeals of decisions of the commission.

280-t. EEO group statistics.

§ 280. Purposes of article. It is the policy of the state of New York to provide equal opportunity in employment for all employees of the state with the same protections provided to employees in the private

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD07667-01-7

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sector as set forth in article fifteen of this chapter, constituting the human rights law. This act shall be known as the "state employees equal employment opportunity act."

§ 280-a. Definitions. 1. For purposes of this article, the term "discrimination" shall include sexual harassment and pregnancy discrimination as forms of prohibited discrimination.

2. The term "EEO" shall mean equal employment opportunity.

§ 280-b. Policies. 1. No state employee or person acting in support of such employee, whether pre-investigation or during the processing of a complaint, shall be subject to retaliation for opposing any practice made unlawful by virtue of the New York state human rights law.

2. Every state employee accused of discrimination covered under article fifteen of this chapter may use the procedures set forth herein to challenge the validity of such accusations and any adverse employment action imposed as a result of such accusations. Provided, however, that any relief granted herein for an employee wrongfully accused of discrimination shall be limited to the affected employee, as no employee making an accusation of discrimination shall be retaliated against in any way.

3. (a) This article applies to the state, all agencies, branches, or departments or divisions thereof, the executive and legislative branches at all levels of government, a county, city, town, village or any other municipal corporation, a school district or any governmental entity operating a public school, college or university, a public improvement or special district, a public authority, commission, or public benefit corporation, or any other public corporation, agency or instrumentality or unit of government which exercises governmental powers under the laws of the state. The word "agency" as used in this article shall embrace all of the aforementioned governmental entities.

(b) This article applies to all class and individual complaints of discrimination cognizable under article fifteen of this chapter, the equal pay act set forth in article six of the labor law, and article twenty-three-A of the correction law.

4. All notices required in this chapter to be given to an individual employee shall be in writing and shall be signed by the aggrieved or affected individual.

§ 280-c. Agency program. 1. Every agency shall maintain a continuing affirmative action program to promote equal opportunity and to identify and eliminate discriminatory practices and policies. In support of such program, which shall be submitted to the New York state commission on human rights for review and approval, the agency shall:

(a) provide sufficient resources to its equal employment opportunity program to ensure efficient and successful operation;

(b) provide for the prompt, fair and impartial processing of complaints in accordance with this article;

(c) conduct a continuing campaign to eradicate every form of prejudice or discrimination from the agency's personnel policies, practices and working conditions;

(d) communicate the agency's equal employment opportunity policy and program and its employment needs to all sources of job candidates without regard to any prohibited characteristic set forth in the human rights law, the equal pay act, and article twenty-three-A of the correction law and provide recruitment assistance on a continuing basis;

(e) review, evaluate, and control managerial and supervisory performance in such a manner as to ensure continuing affirmative application and vigorous enforcement of the policy of equal opportunity as set forth in this article, and provide orientation, training and advice to manag-

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ers and supervisors to assure their understanding and implementation of the equal employment opportunity policy and program;

(f) take appropriate disciplinary action against employees who engage in discriminatory practices;

(g) make reasonable accommodation to the religious needs of applicants and employees when those accommodations can be made without undue hardship on the business of the agency;

(h) make reasonable accommodation to the known physical or mental limitations of qualified applicants and employees with disabilities unless the accommodation would impose an undue hardship on the operation of the agency's program. In this regard, an unpaid leave of absence to enable an employee to recover from an episodic manifestation of a disability shall constitute reasonable accommodation;

(i) provide recognition to employees, supervisors, managers and units demonstrating superior accomplishment in equal employment opportunity;

(j) establish a system for periodically evaluating the effectiveness of the agency's overall equal employment opportunity effort;

(k) provide the maximum feasible opportunity to employees to enhance their skills through on-the-job training, work-study programs, and other training measures so that they may perform at their highest potential and advance in accordance with their abilities;

(l) inform its employees and recognized labor organizations of the affirmative equal employment opportunity policy and program and enlist their cooperation; and

(m) participate at the community level with other employers, with schools and universities, and with other public and private groups in cooperative action to improve employment opportunities and community conditions that affect employability.

2. In order to implement its program, each agency shall, subject to review and approval by the New York state commission on human rights:

(a) develop the plans, procedures and regulations necessary to carry out its program;

(b) establish or make available an alternative dispute resolution program. Such program must be available for both the pre-complaint process and the formal complaint process;

(c) appraise its personnel operations at regular intervals to assure their conformity with its program and this statute;

(d) designate: a director of EEO; EEO officer or officers; such special emphasis program managers, including, but not limited to, people with disabilities program, women's program, minority employment program; and clerical and administrative support as may be necessary to carry out the functions described in this chapter in all organizational units of the agency and at all agency installations. The EEO director shall be under the immediate supervision of the agency head, provided, however, that no agency shall be required to hire additional personnel to effectuate this mandate unless this mandate cannot be complied with unless additional personnel are hired. The functions in this paragraph may be consolidated in one existing employee for appropriate sized agencies;

(e) make written materials available to all employees and applicants informing them of the variety of equal employment opportunity programs and administrative and judicial remedial procedures available to them and prominently post such written materials in all personnel and EEO offices and throughout the workplace;

(f) ensure that full cooperation is provided by all agency employees to EEO counselors, agency EEO personnel, and EEO investigators in the processing and resolution of pre-complaint matters and complaints

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involving the agency and that full cooperation is provided to the commission in the course of appeals, including granting investigators and the commission routine access to personnel, email, and other records of the agency when required in connection with an investigation; and

(g) publicize to all employees and post at all times the names, business telephone numbers and business addresses of the EEO counselors (unless the counseling function is centralized, in which case only one telephone number and address need be publicized and posted), a notice of the time limits and the necessity of contacting a counselor before filing a complaint, and the telephone numbers and addresses of the EEO director, EEO officer or officers and special emphasis program managers, or other person responsible for EEO matters.

3. Under each agency program, the EEO director shall be responsible for:

(a) advising the head of the agency with respect to the preparation of equal employment opportunity plans, procedures, regulations, reports and other matters pertaining to the policy set forth in section two hundred eighty of this article and the agency program;

(b) evaluating from time to time the sufficiency of the total agency program for EEO and reporting to the head of the agency with recommendations as to any improvement or correction needed, including remedial or disciplinary action with respect to managerial, supervisory or other employees who have failed in their responsibilities;

(c) when authorized by the head of the agency, making changes in programs and procedures designed to eliminate discriminatory practices and to improve the agency's program for equal employment opportunity;

(d) providing for counseling of aggrieved individuals and for the receipt and processing of individual and class complaints of discrimination; and

(e) assuring that individual complaints are fairly and thoroughly investigated and that the agency cooperates with the investigation in a timely manner in accordance with this article.

4. The commission shall provide directives, instructions, forms and other materials as needed to carry out the commands and objectives of this article.

§ 280-d. Agency processing. 1. Each agency shall adopt procedures for processing individual and class complaints of discrimination that are consistent with the requirements of this article and with the instructions for complaint processing as set forth in directives of the New York state commission on human rights.

2. The commission shall periodically review agency resources and procedures to ensure compliance with this article.

§ 280-e. Pre-complaint processing. 1. Aggrieved persons who believe they have suffered discrimination or retaliation prohibited in the New York state human rights law must consult an EEO counselor prior to filing a complaint in order to try to informally resolve the matter.

2. Each agency shall make such a counselor available to such person, provided, however, that such EEO counselor must notify such person in a writing signed by that person or his or her representative the right to utilize as an alternative an EEO counselor provided by the New York state commission on human rights.

3. An aggrieved person must initiate contact with a counselor within ninety days of the date of the matter alleged to be discriminatory. The ninety days shall run from the time when the aggrieved person knew or should have known through information readily available to him or her that the discriminatory act or challenged personnel action had occurred.

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4. The agency or the commission shall extend the ninety day time limit in subdivision three of this section when the individual shows that he or she was not notified of the time limits, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the commission.