Expand Worker Harassment Protections

Section 1. Subdivisions 5 and 6 of section 292 of the executive law, subdivision 5 as amended by chapter 363 of the laws of 2015 and subdivision 6 as amended by chapter 481 of the laws of 2010, are amended and a new subdivision 37 is added to read as follows:

5. The term "employer" [does not include any employer with fewer than four persons in his or her employ except as set forth in section two hundred ninety-six-b of this article, provided, however, that in the case of an action for discrimination based on sex pursuant to subdivision one of section two hundred ninety-six of this article, with respect to sexual harassment only, the term "employer"] shall include all employers within the state, including the state and all political subdivisions thereof.

6. The term "employee" in this article does not include any individual employed by his or her parents, spouse or child, [or in the domestic service of any person] except as set forth in section two hundred ninety-six-b of this [title] article.

37. The terms "because of" and "because" in disparate treatment cases means the unlawful motive was a motivating factor. Nothing in this definition is intended to preclude or limit use of the disparate impact method of proving liability.

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

[ ] is old law to be omitted.

LBD09983-02-9

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§ 2. Subdivision 1 of section 296 of the executive law is amended by adding two new paragraphs (h) and (i) to read as follows:

(h) For an employer, licensing agency, employment agency, or labor organization to subject any individual to discriminatory harassment because of the age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status of such individual, or 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, regardless of whether such harassment or hostile work environment is severe or pervasive. Such discriminatory or retaliatory harassment constitutes an unlawful discriminatory practice under this subdivision unless the defendant pleads and proves that the harassing conduct does not rise above the level of petty slights or trivial inconveniences.

(i) The aggrieved person's failure to complain about, or utilize any particular complaint procedure to complain about discriminatory harassment or any other unlawful discriminatory practices under this article is not a defense, or partial defense, to liability under this article.

§ 3. Section 296 of the executive law is amended by adding five new subdivisions 1-b, 1-c, 1-d, 1-e and 1-f to read as follows:

1-b. An employer, licensing agency, employment agency, or labor organization shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one of this section only where:

(a) The employee or agent exercised managerial or supervisory responsibility; or

(b) The employer, licensing agency, employment agency or labor organization knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and/or appropriate corrective action; an employer licensing agency, employment agency, or labor organization shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or

(c) The employer, licensing agency, employment agency, or labor organization should have known of the employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.

1-c. An employer, licensing agency, employment agency, or labor organization shall be liable for an unlawful discriminatory practice committed by an independent contractor, other than an agent of such employer, licensing agency, employment agency, or labor organization's business enterprise only where such discriminatory conduct was committed in the course of such employment or engagement and the employer, licensing agency, employment agency, or labor organization had actual knowledge of and acquiesced in such conduct.

1-d. Where liability of an employer, licensing agency, employment agency, or labor organization has been established pursuant to subdivision one-b of this section, and is based solely on the conduct of an employee, agent or independent contractor, the employer shall be permitted to plead and prove that with respect to the discriminatory conduct for which it was found liable it had:

(a) Established and complied with policies, programs and procedures for the prevention and detection of unlawful discriminatory practices by

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employees, agents and persons employed as independent contractors, including but not limited to:

(i) a meaningful and responsive procedure for investigating complaints of discriminatory practices by employees, agents and persons employed as independent contractors and for taking appropriate action against those persons who are found to have engaged in such practices;

(ii) a firm policy against such practices which is effectively communicated to employees, agents and persons employed as independent contractors;

(iii) a program to educate employees and agents about unlawful discriminatory practices under local, state, and federal law; and

(iv) procedures for the supervision of employees and agents and for the oversight of persons employed as independent contractors specifically directed at the prevention and detection of such practices; and

(b) A record of no, or relatively few, prior incidents of discriminatory conduct by such employee, agent or person employed as an independent contractor or other employees, agents or persons employed as independent contractors.

1-e. The demonstration of any or all of the factors in subdivision one-d of this section, in addition to any other relevant factors, shall be considered in mitigation of the amount of civil penalties to be imposed by the division of human rights pursuant to this chapter or in mitigation of civil penalties or punitive damages which may be imposed pursuant to this article and shall be among the factors considered in determining an employer's liability under paragraph (c) of subdivision one-b of this section.

1-f. An employee or agent of an employer, licensing agency, employment agency, or labor organization is jointly and severally individually liable with their employer, licensing agency, employment agency, or labor organization for an unlawful discriminatory practice if they exercised managerial or supervisory responsibility for the employer, licensing agency, employment agency, or labor organization over employees, agents, or independent contractors of the employer, such that they had authority to direct the employee, agent, or independent contractor's work activities or had the power to do more than carry out personnel decisions made by others. Satisfaction of the requirements of this subdivision is sufficient but not necessary to satisfy the requirements of paragraph (a) of subdivision one-b of this section.

§ 4. Paragraph (b) of subdivision 2 of section 296-b of the executive law, as amended by chapter 8 of the laws of 2019, is amended to read as follows:

(b) Subject a domestic worker to unwelcome harassment based on [gender, race, religion, sexual orientation, gender identity or expression or national origin] his or her age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status or domestic violence victim status, where such harassment has the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, or offensive working environment.

§ 5. Section 296-d of the executive law, as added by section 1 of subpart F of part KK of chapter 57 of the laws of 2018, is amended to read as follows:

§ 296-d. [Sexual harassment] Unlawful discriminatory practices relating to non-employees. It shall be an unlawful discriminatory practice for an employer to permit [sexual harassment of] unlawful discrimination

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against non-employees in its workplace. An employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace, with respect to [sexual harassment] an unlawful discriminatory practice, when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to [sexual harassment] an unlawful discriminatory practice in the employer's workplace, and the employer failed to take immediate and appropriate corrective action. In reviewing such cases involving non-employees, the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of the [harasser] person who engaged in the unlawful discriminatory practice shall be considered.

§ 6. Subdivision 1, paragraph c of subdivision 4 and subdivisions 9 and 10 of section 297 of the executive law, subdivision 1 and paragraph c of subdivision 4 as amended by chapter 166 of the laws of 2000, subparagraph (vi) of paragraph c of subdivision 4 as amended by section 1 of part AA of chapter 57 of the laws of 2009, subdivision 9 as amended by section 16 of part D of chapter 405 of the laws of 1999 and subdivision 10 as amended by chapter 364 of the laws of 2015, are amended to read as follows:

1. Any person claiming to be aggrieved by an unlawful discriminatory practice may, by himself or herself or his or her attorney-at-law, make, sign and file with the division a verified complaint in writing which shall state the name and address of the person alleged to have committed the unlawful discriminatory practice complained of and which shall set forth the particulars thereof and contain such other information as may be required by the division. The commissioner of labor or the attorney general, or the chair of the commission on quality of care for the mentally disabled, or the division on its own motion may, in like manner, make, sign and file such complaint. In connection with the filing of such complaint, the attorney general is authorized to take proof, issue subpoenas and administer oaths in the manner provided in the civil practice law and rules. Any employer whose employees, or some of them, refuse or threaten to refuse to cooperate with the provisions of this article, may file with the division a verified complaint asking for assistance by conciliation or other remedial action.

c. Within one hundred eighty days after the commencement of such hearing, 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 findings 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 privileges to all persons, granting the credit which was the subject of any

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