STATE OF NEW YORK ________________________________________________________________________ S. 1915 A. 1890 2019-2020 Regular Sessions SENATE - ASSEMBLY January 17, 2019 ___________ IN SENATE -- Introduced by Sen. PARKER -- read twice and ordered print- ed, and when printed to be committed to the Committee on Finance IN ASSEMBLY -- Introduced by M. of A. WRIGHT, PEOPLES-STOKES, BARRON, BICHOTTE, COOK, CRESPO, DE LA ROSA, GALEF, O'DONNELL, ROZIC, SEAWRIGHT, SIMON, TAYLOR, L. ROSENTHAL, HUNTER, GLICK, ARROYO, ORTIZ, NIOU, GOTTFRIED, SIMOTAS, WALLACE, OTIS, BRONSON -- read once and referred to the Committee on Governmental Operations AN ACT to amend the state finance law, the civil practice law and rules, the public officers law, the general obligations law, the labor law and the executive law, in relation to discrimination; and to amend subpart E of part KK of chapter 57 of the laws of 2018, amending the labor law, relating to the establishment of a model policy regarding the prevention of sexual harassment and a model training program to prevent sexual harassment in the workplace, in relation to the effec- tiveness thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The section heading and paragraph (a) of subdivision 1 of 2 section 139-l of the state finance law, as added by section 1 of subpart 3 A of part KK of chapter 57 of the laws of 2018, are amended to read as 4 follows: 5 Statement on [~~sexual harassment~~] discrimination, in bids. 6 (a) Every bid hereafter made to the state or any public department or 7 agency thereof, where competitive bidding is required by statute, rule 8 or regulation, for work or services performed or to be performed or 9 goods sold or to be sold, shall contain the following statement 10 subscribed by the bidder and affirmed by such bidder as true under the 11 penalty of perjury: 12 "By submission of this bid, each bidder and each person signing on 13 behalf of any bidder certifies, and in the case of a joint bid each EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00625-02-9

S. 1915 2 A. 1890 1 party thereto certifies as to its own organization, under penalty of 2 perjury, that the bidder has and has implemented a written policy 3 addressing [~~sexual harassment~~] discrimination prevention in the work- 4 place and provides annual [~~sexual harassment~~] discrimination prevention 5 training to all of its employees. Such policy shall, at a minimum, meet 6 the requirements of section two hundred one-g of the labor law." 7 § 2. Paragraphs 2 and 3 of subsection (a) of section 7515 of the civil 8 practice law and rules, as added by section 1 of subpart B of part KK of 9 chapter 57 of the laws of 2018, are amended to read as follows: 10 2. The term "prohibited clause" shall mean any clause or provision in 11 any contract which requires as a condition of the enforcement of the 12 contract or obtaining remedies under the contract that the parties 13 submit to mandatory arbitration to resolve any allegation or claim of 14 [~~an unlawful discriminatory practice of sexual harassment~~] discrimi- 15 nation, in violation of laws prohibiting discrimination, including but 16 not limited to, article fifteen of the executive law. 17 3. The term "mandatory arbitration clause" shall mean a term or 18 provision contained in a written contract which requires the parties to 19 such contract to submit any matter thereafter arising under such 20 contract to arbitration prior to the commencement of any legal action to 21 enforce the provisions of such contract and which also further provides 22 language to the effect that the facts found or determination made by the 23 arbitrator or panel of arbitrators in its application to a party alleg- 24 ing [~~an unlawful discriminatory practice based on sexual harassment~~] 25 discrimination, in violation of laws prohibiting discrimination, includ- 26 ing but not limited to, article fifteen of the executive law shall be 27 final and not subject to independent court review. 28 § 3. The section heading and subdivision 2 of section 17-a of the 29 public officers law, as added by section 1 of subpart C of part KK of 30 chapter 57 of the laws of 2018, are amended to read as follows: 31 Reimbursement of funds paid by state agencies and state entities for 32 the payment of awards adjudicated in [~~sexual harassment~~] discrimination 33 claims. 34 2. Notwithstanding any law to the contrary, any employee who has been 35 subject to a final judgment of personal liability for intentional wrong- 36 doing related to a claim of [~~sexual harassment~~] discrimination, in 37 violation of laws prohibiting discrimination, including but not limited 38 to, article fifteen of the executive law, shall reimburse any state 39 agency or entity that makes a payment to a plaintiff for an adjudicated 40 award based on a claim of [~~sexual harassment~~] discrimination, in 41 violation of laws prohibiting discrimination, including but not limited 42 to, article fifteen of the executive law resulting in a judgment, for 43 his or her proportionate share of such judgment. Such employee shall 44 personally reimburse such state agency or entity within ninety days of 45 the state agency or entity's payment of such award. 46 § 4. The section heading and subdivision 2 of section 18-a of the 47 public officers law, as added by section 2 of subpart C of part KK of 48 chapter 57 of the laws of 2018, are amended to read as follows: 49 Reimbursement of funds paid by a public entity for the payment of 50 awards adjudicated in [~~sexual harassment~~] discrimination claims. 51 2. Notwithstanding any law to the contrary, any employee who has been 52 subject to a final judgment of personal liability for intentional wrong- 53 doing related to a claim of [~~sexual harassment~~] discrimination, in 54 violation of laws prohibiting discrimination, including but not limited 55 to, article fifteen of the executive law, shall reimburse any public 56 entity that makes a payment to a plaintiff for an adjudicated award

S. 1915 3 A. 1890 1 based on a claim of [~~sexual harassment~~] discrimination, in violation of 2 laws prohibiting discrimination, including but not limited to, article 3 fifteen of the executive law resulting in a judgment, for his or her 4 proportionate share of such judgment. Such employee shall personally 5 reimburse such public entity within ninety days of the public entity's 6 payment of such award. 7 § 5. Section 5-336 of the general obligations law, as added by section 8 1 of subpart D of part KK of chapter 57 of the laws of 2018, is amended 9 to read as follows: 10 § 5-336. Nondisclosure agreements. Notwithstanding any other law to 11 the contrary, no employer, its officers or employees shall have the 12 authority to include or agree to include in any settlement, agreement or 13 other resolution of any claim, the factual foundation for which involves 14 [~~sexual harassment~~] discrimination, in violation of laws prohibiting 15 discrimination, including but not limited to, article fifteen of the 16 executive law, any term or condition that would prevent the disclosure 17 of the underlying facts and circumstances to the claim or action unless 18 the condition of confidentiality is the complainant's preference. Any 19 such term or condition must be provided to all parties, and the 20 complainant shall have twenty-one days to consider such term or condi- 21 tion. If after twenty-one days such term or condition is the 22 complainant's preference, such preference shall be memorialized in an 23 agreement signed by all parties. For a period of at least seven days 24 following the execution of such agreement, the complainant may revoke 25 the agreement, and the agreement shall not become effective or be 26 enforceable until such revocation period has expired. 27 § 6. Section 5003-b of the civil practice law and rules, as added by 28 section 2 of subpart D of part KK of chapter 57 of the laws of 2018, is 29 amended to read as follows: 30 § 5003-b. Nondisclosure agreements. Notwithstanding any other law to 31 the contrary, for any claim or cause of action, whether arising under 32 common law, equity, or any provision of law, the factual foundation for 33 which involves [~~sexual harassment~~] discrimination, in violation of laws 34 prohibiting discrimination, including but not limited to, article 35 fifteen of the executive law, in resolving, by agreed judgment, stipu- 36 lation, decree, agreement to settle, assurance of discontinuance or 37 otherwise, no employer, its officer or employee shall have the authority 38 to include or agree to include in such resolution any term or condition 39 that would prevent the disclosure of the underlying facts and circum- 40 stances to the claim or action unless the condition of confidentiality 41 is the plaintiff's preference. Any such term or condition must be 42 provided to all parties, and the plaintiff shall have twenty-one days to 43 consider such term or condition. If after twenty-one days such term or 44 condition is the plaintiff's preference, such preference shall be memo- 45 rialized in an agreement signed by all parties. For a period of at least 46 seven days following the execution of such agreement, the plaintiff may 47 revoke the agreement, and the agreement shall not become effective or be 48 enforceable until such revocation period has expired. 49 § 7. Section 201-g of the labor law, as added by section 1 of subpart 50 E of part KK of chapter 57 of the laws of 2018, is amended to read as 51 follows: 52 § 201-g. Prevention of [~~sexual harassment~~] discrimination. 1. The 53 department shall consult with the division of human rights to create and 54 publish a model [~~sexual harassment~~] discrimination prevention guidance 55 document and [~~sexual harassment prevention~~] discrimination prevention 56 policy that employers may utilize in their adoption of [~~a sexual harass-~~

S. 1915 4 A. 1890 1 ~~ment prevention~~] the policy required by this section. For purposes of 2 this section, "discrimination" shall mean unlawful discriminatory prac- 3 tice, as defined in section two hundred ninety-six of the executive law 4 and/or discrimination or harassment based on race, color, sex, national 5 origin, creed, sexual orientation, age, disability, military status, 6 familial status, marital status, predisposing genetic characteristics, 7 or domestic violence victim status. 8 a. Such model [~~sexual harassment prevention~~] discrimination prevention 9 policy shall: (i) prohibit [~~sexual harassment~~] discrimination consistent 10 with guidance issued by the department in consultation with the division 11 of human rights and provide examples of prohibited conduct that would 12 constitute unlawful [~~sexual harassment~~] discrimination; (ii) include but 13 not be limited to information concerning the federal and state statutory 14 provisions concerning [~~sexual harassment~~] discrimination and remedies 15 available to victims of [~~sexual harassment~~] discrimination and a state- 16 ment that there may be applicable local laws; (iii) include a standard 17 complaint form; (iv) include a procedure for the timely and confidential 18 investigation of complaints and ensure due process for all parties; (v) 19 inform employees of their rights of redress and all available forums for 20 adjudicating [~~sexual harassment~~] discrimination complaints administra- 21 tively and judicially; (vi) clearly state that [~~sexual harassment~~] 22 discrimination is considered a form of employee misconduct and that 23 sanctions will be enforced against individuals engaging in [~~sexual~~ 24 ~~harassment~~] discrimination and against supervisory and managerial 25 personnel who knowingly allow such behavior to continue; and (vii) 26 clearly state that retaliation against individuals who complain of 27 [~~sexual harassment~~] discrimination or who testify or assist in any 28 proceeding under the law is unlawful. 29 b. Every employer shall adopt the model [~~sexual harassment~~] discrimi- 30 nation prevention policy promulgated pursuant to this subdivision or 31 establish a [~~sexual harassment~~] discrimination prevention policy to 32 prevent [~~sexual harassment~~] discrimination that equals or exceeds the 33 minimum standards provided by such model [~~sexual harassment prevention~~] 34 policy. Such [~~sexual harassment prevention~~] policy shall be provided to 35 all employees in writing. Such model [~~sexual harassment prevention~~] 36 policy shall be publicly available and posted on the websites of both 37 the department and the division of human rights. 38 2. The department shall consult with the division of human rights and 39 produce a model [~~sexual harassment~~] discrimination prevention training 40 program to prevent [~~sexual harassment~~] discrimination in the workplace. 41 a. Such model [~~sexual harassment prevention~~] training program shall be 42 interactive and include: (i) an explanation of [~~sexual harassment~~] 43 discrimination consistent with guidance issued by the department in 44 consultation with the division of human rights; (ii) examples of conduct 45 that would constitute unlawful [~~sexual harassment~~] discrimination; (iii) 46 information concerning the federal and state statutory provisions 47 concerning [~~sexual harassment~~] discrimination and remedies available to 48 victims of [~~sexual harassment~~] discrimination; and (iv) information 49 concerning employees' rights of redress and all available forums for 50 adjudicating complaints. 51 b. The department shall include information in such model [~~sexual~~ 52 ~~harassment prevention~~] training program addressing conduct by supervi- 53 sors and any additional responsibilities for such supervisors. 54 c. Every employer shall utilize [~~the~~] such model [~~sexual harassment~~ 55 ~~prevention~~] training program pursuant to this subdivision or establish a 56 training program for employees to prevent [~~sexual harassment~~] discrimi-

S. 1915 5 A. 1890 1 nation that equals or exceeds the minimum standards provided by such 2 model training. Such [~~sexual harassment prevention~~] training program 3 shall be provided to all employees on an annual basis. 4 3. The commissioner may promulgate regulations as he or she deems 5 necessary for the purposes of carrying out the provisions of this 6 section. 7 § 8. Section 2 of subpart E of part KK of chapter 57 of the laws of 8 2018, amending the labor law, relating to the establishment of a model 9 policy regarding the prevention of sexual harassment and a model train- 10 ing program to prevent sexual harassment in the workplace, is amended to 11 read as follows: 12 § 2. This act shall take effect on the one hundred eightieth day after 13 it shall have become a law. Effective immediately, the department of 14 labor, in consultation with the division of human rights, is authorized 15 to create the model [~~sexual harassment prevention~~] policy and the model 16 [~~sexual harassment prevention~~] training program required to be created 17 and published pursuant to section 201-g of the labor law as added by 18 section one of this act. 19 § 9. Section 296-d of the executive law, as added by section 1 of 20 subpart F of part KK of chapter 57 of the laws of 2018, is amended to 21 read as follows: 22 § 296-d. [~~Sexual harassment~~] Discrimination relating to non-employees. 23 It shall be an unlawful discriminatory practice for an employer to 24 permit [~~sexual harassment~~] discrimination or harassment based on race, 25 color, sex, national origin, creed, sexual orientation, age, disability, 26 military status, familial status, marital status, predisposing genetic 27 characteristics, or domestic violence victim status of non-employees in 28 its workplace. An employer may be held liable to a non-employee who is 29 a contractor, subcontractor, vendor, consultant or other person provid- 30 ing services pursuant to a contract in the workplace or who is an 31 employee of such contractor, subcontractor, vendor, consultant or other 32 person providing services pursuant to a contract in the workplace, with 33 respect to [~~sexual harassment~~] discrimination or harassment based on 34 race, color, sex, national origin, creed, sexual orientation, age, disa- 35 bility, military status, familial status, marital status, predisposing 36 genetic characteristics, or domestic violence victim status, when the 37 employer, its agents or supervisors knew or should have known that such 38 non-employee was subjected to [~~sexual harassment~~] discrimination or 39 harassment based on race, color, sex, national origin, creed, sexual 40 orientation, age, disability, military status, familial status, marital 41 status, predisposing genetic characteristics, or domestic violence 42 victim status in the employer's workplace, and the employer failed to 43 take immediate and appropriate corrective action. In reviewing such 44 cases involving non-employees, the extent of the employer's control and 45 any other legal responsibility which the employer may have with respect 46 to the conduct of the harasser shall be considered. 47 § 10. Subdivision 5 of section 292 of the executive law, as amended by 48 chapter 363 of the laws of 2015, is amended to read as follows: 49 5. The term "employer" [~~does not include any employer with fewer than~~ 50 ~~four persons in his or her employ except as set forth in section two~~ 51 ~~hundred ninety-six-b of this article, provided, however, that in the~~ 52 ~~case of an action for discrimination based on sex pursuant to subdivi-~~ 53 ~~sion one of section two hundred ninety-six of this article, with respect~~ 54 ~~to sexual harassment only, the term "employer"~~] shall include all 55 employers within the state.

S. 1915 6 A. 1890 1 § 11. Subdivisions 9 and 10 of section 63 of the executive law, subdi- 2 vision 9 as amended by chapter 359 of the laws of 1969, are amended to 3 read as follows: 4 9. Bring and prosecute or defend upon request of the [~~industrial~~] 5 commissioner of labor or the state division of human rights, any civil 6 action or proceeding, the institution or defense of which in his judg- 7 ment is necessary for effective enforcement of the laws of this state 8 against discrimination by reason of age, race, sex, creed, color [or], 9 national origin, sexual orientation, military status, disability, 10 predisposing genetic characteristics, familial status, marital status, 11 or domestic violence victim status, or for enforcement of any order or 12 determination of such commissioner or division made pursuant to such 13 laws. 14 10. Prosecute every person charged with the commission of a criminal 15 offense in violation of any of the laws of this state against discrimi- 16 nation because of age, race, sex, creed, color, [or] national origin, 17 sexual orientation, military status, disability, predisposing genetic 18 characteristics, familial status, marital status, or domestic violence 19 victim status, in any case where in his judgment, because of the extent 20 of the offense, such prosecution cannot be effectively carried on by the 21 district attorney of the county wherein the offense or a portion thereof 22 is alleged to have been committed, or where in his judgment the district 23 attorney has erroneously failed or refused to prosecute. In all such 24 proceedings, the attorney-general may appear in person or by his deputy 25 or assistant before any court or any grand jury and exercise all the 26 powers and perform all the duties in respect of such actions or 27 proceedings which the district attorney would otherwise be authorized or 28 required to exercise or perform. 29 § 12. Severability clause. If any clause, sentence, paragraph, subdi- 30 vision, section or subpart of this act shall be adjudged by any court of 31 competent jurisdiction to be invalid, such judgment shall not affect, 32 impair, or invalidate the remainder thereof, but shall be confined in 33 its operation to the clause, sentence, paragraph, subdivision, section 34 or subject thereof directly involved in the controversy in which such 35 judgment shall have been rendered. It is hereby declared to be the 36 intent of the legislature that this act would have been enacted even if 37 such invalid provisions had not been included herein. 38 § 13. This act shall take effect immediately.

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