S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7167
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 10, 2019
                                ___________
 
 Introduced  by M. of A. ROZIC -- read once and referred to the Committee
   on Governmental Operations
 
 AN ACT to amend the executive law, in relation to unlawful discriminato-
   ry practices involving sexual harassment
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.    Section  296  of the executive law is amended by adding
 three new subdivisions 1-b, 22 and 23 to read as follows:
   1-B. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR  AN  EMPLOYER
 TO:
   (A)  ENGAGE  IN  UNWELCOME  SEXUAL ADVANCES TOWARDS, MAKE REQUESTS FOR
 SEXUAL FAVORS FROM, OR ENGAGE IN OTHER VERBAL OR PHYSICAL CONDUCT  OF  A
 SEXUAL OR SEX-BASED NATURE WITH AN EMPLOYEE WHEN: (I) SUBMISSION TO SUCH
 CONDUCT  IS  MADE EITHER EXPLICITLY OR IMPLICITLY A TERM OR CONDITION OF
 AN INDIVIDUAL'S EMPLOYMENT; (II) SUBMISSION  TO  OR  REJECTION  OF  SUCH
 CONDUCT  BY  AN INDIVIDUAL IS USED AS THE BASIS FOR EMPLOYMENT DECISIONS
 AFFECTING SUCH INDIVIDUAL; OR (III) SUCH  CONDUCT  HAS  THE  PURPOSE  OR
 EFFECT  OF INTERFERING WITH AN INDIVIDUAL'S WORK PERFORMANCE BY CREATING
 AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRONMENT.
   (B) FOR THE PURPOSES OF THIS SUBDIVISION, "EMPLOYER" SHALL INCLUDE ANY
 INDIVIDUAL WHO MAY HIRE, TRANSFER, SUSPEND, LAY  OFF,  RECALL,  PROMOTE,
 DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR HAS RESPON-
 SIBILITY TO DIRECT THEM OR EFFECTIVELY RECOMMEND SUCH ACTION, IF THE USE
 OF  SUCH  AUTHORITY  IS  NOT  MERELY  ROUTINE OR CLERICAL IN NATURE, BUT
 REQUIRES THE USE OF INDEPENDENT JUDGMENT.
   22. IN ANY CASE BROUGHT PURSUANT TO THE PROVISIONS OF THIS ARTICLE  ON
 THE  BASIS OF SEX OR SEXUAL HARASSMENT ONLY, WHERE A PERSON ALLEGES THAT
 A COVERED ENTITY HAS DEPRIVED SUCH PERSON OF EQUAL TERMS AND  CONDITIONS
 OF  EMPLOYMENT,  LIABILITY  FOR SUCH ALLEGED UNLAWFUL DISCRIMINATORY ACT
 SHALL ATTACH WHERE THE COMPLAINANT OR PLAINTIFF  DEMONSTRATES  THAT  THE
 CONDUCT  COMPLAINED OF WAS MOTIVATED IN WHOLE OR IN PART BY THE PERSON'S
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06473-02-9

 A. 7167                             2
 
 SEX, REGARDLESS OF  THE  LEVEL  OF  PERVASIVENESS  OR  SEVERITY  OF  THE
 DISCRIMINATION  OR  HARASSMENT.  A  COVERED ENTITY MAY DEMONSTRATE AS AN
 AFFIRMATIVE DEFENSE TO LIABILITY PURSUANT TO THIS SUBDIVISION  THAT  THE
 DISCRIMINATION  OR HARASSMENT COMPLAINED OF CONSISTED OF NO GREATER THAN
 WHAT A REASONABLE VICTIM OF DISCRIMINATION OR HARASSMENT WOULD  CONSIDER
 PETTY SLIGHTS AND TRIVIAL ANNOYANCES.
   23.  IN ANY CASE BROUGHT PURSUANT TO THE PROVISIONS OF THIS ARTICLE ON
 THE BASIS OF SEX OR SEXUAL HARASSMENT ONLY, IT SHALL NOT BE DEFENSE OR A
 PARTIAL DEFENSE THAT THE EMPLOYEE FAILED TO COMPLAIN ABOUT,  OR  UTILIZE
 ANY  PARTICULAR  COMPLAINT  PROCEDURE  TO  COMPLAIN ABOUT, SUCH UNLAWFUL
 DISCRIMINATORY ACT OR ACTS WHEN THE PERSON TO WHOM THE EMPLOYEE WOULD OR
 WOULD BE REQUIRED TO COMPLAIN IS THE PERSON WHOSE CONDUCT IS THE SUBJECT
 OF THE COMPLAINT.
   § 2. 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] OR, IN THE CASE OF sexual  harassment  [only,]  PURSUANT  TO
 SUBDIVISION ONE-B OF SECTION TWO HUNDRED NINETY-SIX OF THIS ARTICLE, the
 term "employer" shall include all employers within the state.
   §  3.  The division of human rights shall be authorized to promulgate,
 amend or repeal rules or regulations on an emergency basis to  implement
 the provisions of this act.
   § 4. This act shall take effect immediately.