S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
     S. 1915                                                  A. 1890
 
                        2019-2020 Regular Sessions
 
                       S E N A T E - A S S E M B L Y
 
                             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:

   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

 S. 1915                             2                            A. 1890
 
 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  work-
 place  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] DISCRIMI-
 NATION, 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 alleg-
 ing [an unlawful discriminatory practice  based  on  sexual  harassment]
 DISCRIMINATION, IN VIOLATION OF LAWS PROHIBITING DISCRIMINATION, INCLUD-
 ING  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 wrong-
 doing  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 wrong-
 doing 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

 S. 1915                             3                            A. 1890
 
 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  condi-
 tion.   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, stipu-
 lation, 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  circum-
 stances  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  memo-
 rialized 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-

 S. 1915                             4                            A. 1890

 ment  prevention]  THE  policy required by this section. FOR PURPOSES OF
 THIS SECTION, "DISCRIMINATION" SHALL MEAN UNLAWFUL DISCRIMINATORY  PRAC-
 TICE,  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  state-
 ment  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 administra-
 tively 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] DISCRIMI-
 NATION 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  supervi-
 sors 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-

 S. 1915                             5                            A. 1890
 
 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.
   §  8.  Section  2 of 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 train-
 ing program to prevent sexual harassment in the workplace, is amended to
 read as follows:
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.   Effective immediately, the  department  of
 labor,  in consultation with the division of human rights, is authorized
 to create the model [sexual harassment prevention] policy and the  model
 [sexual  harassment  prevention] training program required to be created
 and published pursuant to section 201-g of the labor  law  as  added  by
 section one of this act.
   §  9.  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] DISCRIMINATION relating to non-employees.
 It  shall  be  an  unlawful  discriminatory  practice for an employer to
 permit [sexual harassment] 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 of 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  provid-
 ing  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] DISCRIMINATION  OR  HARASSMENT  BASED  ON
 RACE, COLOR, SEX, NATIONAL ORIGIN, CREED, SEXUAL ORIENTATION, AGE, DISA-
 BILITY,  MILITARY  STATUS, FAMILIAL STATUS, MARITAL STATUS, PREDISPOSING
 GENETIC CHARACTERISTICS, OR DOMESTIC VIOLENCE VICTIM  STATUS,  when  the
 employer,  its agents or supervisors knew or should have known that such
 non-employee was subjected  to  [sexual  harassment]  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 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 shall be considered.
   § 10. Subdivision 5 of section 292 of the executive law, as amended by
 chapter 363 of the laws of 2015, is amended 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 subdivi-
 sion 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.

 S. 1915                             6                            A. 1890
 
   § 11. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
 vision  9  as amended by chapter 359 of the laws of 1969, are amended to
 read as follows:
   9.  Bring  and  prosecute  or  defend upon request of the [industrial]
 commissioner OF LABOR or the state division of human rights,  any  civil
 action  or  proceeding, the institution or defense of which in his judg-
 ment is necessary for effective enforcement of the laws  of  this  state
 against  discrimination  by reason of age, race, SEX, creed, color [or],
 national  origin,  SEXUAL  ORIENTATION,  MILITARY  STATUS,   DISABILITY,
 PREDISPOSING  GENETIC  CHARACTERISTICS, FAMILIAL STATUS, MARITAL STATUS,
 OR DOMESTIC VIOLENCE VICTIM STATUS, or for enforcement of any  order  or
 determination  of  such  commissioner  or division made pursuant to such
 laws.
   10. Prosecute every person charged with the commission of  a  criminal
 offense  in violation of any of the laws of this state against discrimi-
 nation because of AGE, race, SEX, creed, color,  [or]  national  origin,
 SEXUAL  ORIENTATION,  MILITARY  STATUS, DISABILITY, PREDISPOSING GENETIC
 CHARACTERISTICS, FAMILIAL STATUS, MARITAL STATUS, OR  DOMESTIC  VIOLENCE
 VICTIM  STATUS, in any case where in his judgment, because of the extent
 of the offense, such prosecution cannot be effectively carried on by the
 district attorney of the county wherein the offense or a portion thereof
 is alleged to have been committed, or where in his judgment the district
 attorney has erroneously failed or refused to  prosecute.  In  all  such
 proceedings,  the attorney-general may appear in person or by his deputy
 or assistant before any court or any grand jury  and  exercise  all  the
 powers  and  perform  all  the  duties  in  respect  of  such actions or
 proceedings which the district attorney would otherwise be authorized or
 required to exercise or perform.
   § 12. Severability clause. If any clause, sentence, paragraph,  subdi-
 vision, section or subpart of this act shall be adjudged by any court of
 competent  jurisdiction  to  be invalid, such judgment shall not affect,
 impair, or invalidate the remainder thereof, but shall  be  confined  in
 its  operation  to the clause, sentence, paragraph, subdivision, section
 or subject thereof directly involved in the controversy  in  which  such
 judgment  shall  have  been  rendered.  It  is hereby declared to be the
 intent of the legislature that this act would have been enacted even  if
 such invalid provisions had not been included herein.
   § 13. This act shall take effect immediately.