What's happening
This bill defines retaliatory acts in the workplace and allows employers an affirmative defense against retaliation claims.
Why it matters
Clarifies what counts as workplace retaliation. By explicitly defining retaliatory acts as less favorable treatment compared to other employees, the bill removes ambiguity around what “retaliation” means, potentially making it easier for employees to recognize and challenge unfair treatment.
Introduces clear employer defenses. The bill allows employers to avoid liability if they can prove that disciplinary actions (like demotion or discharge) were planned before learning of the employee’s protected activity, or if their actions were unrelated to the employee’s opposition to discrimination, offering employers a structured way to defend against retaliation claims.
Could impact workplace investigations and documentation. Both employees and employers may need to document workplace decisions and timelines more thoroughly, since establishing the sequence of events and motivations becomes central to proving or defending against retaliation claims.
May affect how discrimination complaints are handled. By formalizing these definitions and defenses, the bill could influence how employers respond to internal complaints, possibly encouraging more consistent and transparent HR practices to avoid even the appearance of retaliation.
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Who cares
Headline styles
Define Workplace Retaliation Rules
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to investigations and government operations
- Referred to investigations and government operations
Full text
1 pageUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
1051
2019-2020 Regular Sessions
IN SENATE
January 10, 2019
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.
LBD00841-01-9
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'p 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.
Prior legislative history
2017/2018: S7192 REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
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.