Expand Anti-Discrimination Protections

Section 1. The section heading and paragraph (a) of subdivision 1 of section 139-l of the state finance law, as added by section 1 of subpart A of part KK of chapter 57 of the laws of 2018, are amended to read as follows:

Statement on [sexual harassment] discrimination, in bids.

(a) Every bid hereafter made to the state or any public department or agency thereof, where competitive bidding is required by statute, rule or regulation, for work or services performed or to be performed or goods sold or to be sold, shall contain the following statement subscribed by the bidder and affirmed by such bidder as true under the penalty of perjury:

"By submission of this bid, each bidder and each person signing on 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

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party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing [sexual harassment] discrimination prevention in the workplace and provides annual [sexual harassment] discrimination prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of section two hundred one-g of the labor law."

§ 2. Paragraphs 2 and 3 of subsection (a) of section 7515 of the civil practice law and rules, as added by section 1 of subpart B of part KK of chapter 57 of the laws of 2018, are amended to read as follows:

2. The term "prohibited clause" shall mean any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of [an unlawful discriminatory practice of sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law.

3. The term "mandatory arbitration clause" shall mean a term or provision contained in a written contract which requires the parties to such contract to submit any matter thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the facts found or determination made by the arbitrator or panel of arbitrators in its application to a party alleging [an unlawful discriminatory practice based on sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law shall be final and not subject to independent court review.

§ 3. The section heading and subdivision 2 of section 17-a of the public officers law, as added by section 1 of subpart C of part KK of chapter 57 of the laws of 2018, are amended to read as follows:

Reimbursement of funds paid by state agencies and state entities for the payment of awards adjudicated in [sexual harassment] discrimination claims.

2. Notwithstanding any law to the contrary, any employee who has been subject to a final judgment of personal liability for intentional wrongdoing related to a claim of [sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, shall reimburse any state agency or entity that makes a payment to a plaintiff for an adjudicated award based on a claim of [sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law resulting in a judgment, for his or her proportionate share of such judgment. Such employee shall personally reimburse such state agency or entity within ninety days of the state agency or entity's payment of such award.

§ 4. The section heading and subdivision 2 of section 18-a of the public officers law, as added by section 2 of subpart C of part KK of chapter 57 of the laws of 2018, are amended to read as follows:

Reimbursement of funds paid by a public entity for the payment of awards adjudicated in [sexual harassment] discrimination claims.

2. Notwithstanding any law to the contrary, any employee who has been subject to a final judgment of personal liability for intentional wrongdoing related to a claim of [sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, shall reimburse any public entity that makes a payment to a plaintiff for an adjudicated award

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based on a claim of [sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law resulting in a judgment, for his or her proportionate share of such judgment. Such employee shall personally reimburse such public entity within ninety days of the public entity's payment of such award.

§ 5. Section 5-336 of the general obligations law, as added by section 1 of subpart D of part KK of chapter 57 of the laws of 2018, is amended to read as follows:

§ 5-336. Nondisclosure agreements. Notwithstanding any other law to the contrary, no employer, its officers or employees shall have the authority to include or agree to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves [sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant's preference. Any such term or condition must be provided to all parties, and the complainant shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the complainant's preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

§ 6. Section 5003-b of the civil practice law and rules, as added by section 2 of subpart D of part KK of chapter 57 of the laws of 2018, is amended to read as follows:

§ 5003-b. Nondisclosure agreements. Notwithstanding any other law to the contrary, for any claim or cause of action, whether arising under common law, equity, or any provision of law, the factual foundation for which involves [sexual harassment] discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, in resolving, by agreed judgment, stipulation, decree, agreement to settle, assurance of discontinuance or otherwise, no employer, its officer or employee shall have the authority to include or agree to include in such resolution any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the plaintiff's preference. Any such term or condition must be provided to all parties, and the plaintiff shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the plaintiff's preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the plaintiff may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

§ 7. Section 201-g of the labor law, as added by section 1 of subpart E of part KK of chapter 57 of the laws of 2018, is amended to read as follows:

§ 201-g. Prevention of [sexual harassment] discrimination. 1. The department shall consult with the division of human rights to create and publish a model [sexual harassment] discrimination prevention guidance document and [sexual harassment prevention] discrimination prevention policy that employers may utilize in their adoption of [a sexual harass-

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ment prevention] the policy required by this section. For purposes of this section, "discrimination" shall mean unlawful discriminatory practice, as defined in section two hundred ninety-six of the executive law and/or discrimination or harassment based on race, color, sex, national origin, creed, sexual orientation, age, disability, military status, familial status, marital status, predisposing genetic characteristics, or domestic violence victim status.

a. Such model [sexual harassment prevention] discrimination prevention policy shall: (i) prohibit [sexual harassment] discrimination consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful [sexual harassment] discrimination; (ii) include but not be limited to information concerning the federal and state statutory provisions concerning [sexual harassment] discrimination and remedies available to victims of [sexual harassment] discrimination and a statement that there may be applicable local laws; (iii) include a standard complaint form; (iv) include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties; (v) inform employees of their rights of redress and all available forums for adjudicating [sexual harassment] discrimination complaints administratively and judicially; (vi) clearly state that [sexual harassment] discrimination is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in [sexual harassment] discrimination and against supervisory and managerial personnel who knowingly allow such behavior to continue; and (vii) clearly state that retaliation against individuals who complain of [sexual harassment] discrimination or who testify or assist in any proceeding under the law is unlawful.

b. Every employer shall adopt the model [sexual harassment] discrimination prevention policy promulgated pursuant to this subdivision or establish a [sexual harassment] discrimination prevention policy to prevent [sexual harassment] discrimination that equals or exceeds the minimum standards provided by such model [sexual harassment prevention] policy. Such [sexual harassment prevention] policy shall be provided to all employees in writing. Such model [sexual harassment prevention] policy shall be publicly available and posted on the websites of both the department and the division of human rights.

2. The department shall consult with the division of human rights and produce a model [sexual harassment] discrimination prevention training program to prevent [sexual harassment] discrimination in the workplace.

a. Such model [sexual harassment prevention] training program shall be interactive and include: (i) an explanation of [sexual harassment] discrimination consistent with guidance issued by the department in consultation with the division of human rights; (ii) examples of conduct that would constitute unlawful [sexual harassment] discrimination; (iii) information concerning the federal and state statutory provisions concerning [sexual harassment] discrimination and remedies available to victims of [sexual harassment] discrimination; and (iv) information concerning employees' rights of redress and all available forums for adjudicating complaints.

b. The department shall include information in such model [sexual harassment prevention] training program addressing conduct by supervisors and any additional responsibilities for such supervisors.

c. Every employer shall utilize [the] such model [sexual harassment prevention] training program pursuant to this subdivision or establish a training program for employees to prevent [sexual harassment] discrimi-

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nation that equals or exceeds the minimum standards provided by such model training. Such [sexual harassment prevention] training program shall be provided to all employees on an annual basis.

3. The commissioner may promulgate regulations as he or she deems necessary for the purposes of carrying out the provisions of this section.