What's happening
This bill defines retaliatory acts in the workplace and allows employers an affirmative defense against retaliation claims under New York law.
Why it matters
Clarifies what counts as retaliation. By specifically defining retaliatory acts as treating an employee less favorably than others because they've opposed discrimination, the bill gives both workers and employers clearer guidance on what actions are legally prohibited.
Introduces a concrete employer defense. Employers can now defend themselves against retaliation claims by proving they intended to discipline the employee before learning of any protected activity, or by showing that any negative treatment was unrelated to the employee’s opposition or complaint. This could make it harder for employees to win retaliation claims without clear evidence of motive.
Raises the standard for proving retaliation. The requirement that employers demonstrate their actions were not influenced by the employee's protected activity adds a layer of legal complexity, potentially leading to more thorough documentation and investigation of workplace decisions.
Potential impact on workplace culture. The bill may encourage both better record-keeping and more transparency in personnel decisions, but could also cause some employees to feel less protected if they perceive the new defenses as making it easier for employers to justify adverse actions.
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Who cares
Headline styles
Define Workplace Retaliation
Plain English, a few words. Used as the page title.
Sponsors
2 Co-sponsors
History
- Referred to investigations and government operations
Full text
1 pageUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
7192
IN SENATE (Prefiled)
January 3, 2018
Introduced by Sen. PERSAUD -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations
AN ACT to amend the executive law, in relation to defining retaliatory acts in the workplace and establishing an affirmative defense
The People of the State of New York, represented in Senate and Assembly, 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 practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article. For purposes of this subdivision, an act shall be deemed retaliatory in the workplace if an aggrieved employee is treated less favorably than any other employee, provided that an employer may raise an affirmative defense that: (a) the employer planned to demote, discharge, or penalize the employee prior to learning that the employee had opposed a practice forbidden under this article or the employee had filed a complaint, testified or assisted in a proceeding under this article, or (b) the employer proves that its treatment of the aggrieved employee occurred without any consideration to the employee's opposition to a practice forbidden under this article or the employee's filing of a complaint, testifying or assisting in a proceeding under this article.
§ 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14052-01-7
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the executive law, in relation to defining retaliatory acts in the workplace and establishing an affirma- tive defense
Purpose
To strengthen the provisions of law protecting against retaliation by an employer against an employee who complains of discriminatory conduct to the State Division of Human Rights
Summary of provisions
Section one provides that an employee who complains about discriminatory conduct to the State Division of Human Rights or otherwise opposes discriminatory practices within the workplace may not be retaliated against unless the employer can raise one of two new affirmative defenses. For purposes of this section, any treatment that is less favorable towards the claimant compared to any other employee shall be deemed to be retaliation. The employer may raise one of two affirmative defenses to rebut the presumption of retaliation; either that the employer had previously planned to demote, discharge, or penalize the employee before they learned of the employee's status as a person who has complained about discriminatory conduct in the workplace, or alter- natively that the employer can prove that the less favorable treatment has occurred without any consideration of the employee's opposition to or complaint of discriminatory conduct.
Section two states the effective date.
Justification
Employees who suffer from or are witness to discriminatory conduct are often afraid to report these actions to state authorities, in part due to fear of reprisal in the workplace. The Human Rights Law generally prohibits retaliation, but the current provisions are too narrow. Courts often find that an employee is not protected from retaliation because the employer argues that the adverse employment action was caused for some reason other than the employee reporting conduct to the Division of Human Rights. These mixed-motive cases are difficult for an employee to combat, and creates a chilling effect among other employees.
The failure of the state's anti-retaliation laws in the area of discrim- ination has become particularly evidence with the rise of public reports of incidents of sexual harassment. It has become clear that far too many women fear reporting conduct and expect little protection if they report harassing co-workers or supervisors to the proper authorities. This means that the state must enhance current law and ensure that workers are protected from reprisal.
This legislation will ensure that when an employee reports or threatens to report an act of discrimination, including one of sexual harassment, that the employee will be protected from being treated less favorably in the workplace. This legislation would broaden current law so that any less favorable treatment would be deemed retaliatory, and would force the employer to bear the burden of showing that their conduct was not retaliatory, either by showing they had no knowledge of the employee's report of misconduct or by showing that the employer paid no attention to employee's status as a reporter or objector to discriminatory conduct. If enacted, this law would strongly encourage more employees to come forward with reports of discriminatory conduct, and help ferret out harassing and discriminatory behavior from the workplace.
Fiscal impact
None
Effective date
Immediately.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.