S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8424
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 17, 2019
                                ___________
 
 Introduced  by M. of A. SIMOTAS -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the executive law, in relation to increased  protections
   for  protected  classes and special protections for employees who have
   been sexually harassed; and to amend a chapter of the  laws  of  2019,
   amending  the  executive  law  relating  to  increased protections for
   protected classes and special protections for employees who have  been
   sexually  harassed,  as  proposed in legislative bills numbers A. 8421
   and S. 6577, in relation to the effectiveness thereof
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  5  of  section  292 of the executive law, as
 amended by a chapter of the laws of 2019 amending the executive law  and
 other  laws  relating to increased protections for protected classes and
 special protections for employees who have been  sexually  harassed,  as
 proposed in legislative bills numbers S. 6577 and A. 8421, is amended to
 read as follows:
   5.  The term "employer" shall include all employers within the state[,
 including the state and all political subdivisions thereof].
   § 2. Paragraph (h) of subdivision 1 of section 296  of  the  executive
 law,  as  added  by a chapter of the laws of 2019 amending the executive
 law and other laws  relating  to  increased  protections  for  protected
 classes  and  special  protections  for employees who have been sexually
 harassed, as proposed in legislative bills numbers S. 6577 and A.  8421,
 is amended to read as follows:
   (h)  For  an  employer,  licensing  agency, employment agency or labor
 organization to subject any individual to harassment because of an indi-
 vidual's age, race, creed, color, national origin,  sexual  orientation,
 gender identity or expression, military status, sex, disability, predis-
 posing  genetic characteristics, familial status, marital status, domes-
 tic violence victim status, or because the individual  has  opposed  any
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08950-05-9

 A. 8424                             2
 
 practices  forbidden  under  this  article or because the individual has
 filed a complaint, testified or assisted in any  proceeding  under  this
 article,  regardless  of  whether  such  harassment  would be considered
 severe  or  pervasive under precedent applied to harassment claims. Such
 harassment is an unlawful discriminatory practice when  it  subjects  an
 individual  to  inferior  terms,  conditions or privileges of employment
 because of the individual's membership in one or more of these protected
 categories. The fact that such individual did not make a complaint about
 the harassment to such employer, licensing agency, employment agency  or
 labor  organization shall not be determinative of whether such employer,
 licensing agency, employment  agency  or  labor  organization  shall  be
 liable. Nothing in this section shall imply that an employee must demon-
 strate  the  existence of an individual to whom the employee's treatment
 must be compared. It shall be an affirmative defense to liability  under
 this  subdivision  that  the  harassing  conduct does not rise above the
 level of what a  reasonable  victim  of  discrimination  with  the  same
 protected characteristic OR CHARACTERISTICS would consider petty slights
 or trivial inconveniences.
   § 3. Subdivision 10 of section 297 of the executive law, as amended by
 a  chapter of the laws of 2019 amending the executive law and other laws
 relating to increased protections  for  protected  classes  and  special
 protections  for  employees who have been sexually harassed, as proposed
 in legislative bills numbers S. 6577 and A. 8421, is amended to read  as
 follows:
   10.  With  respect  to all cases of housing discrimination and housing
 related credit discrimination in an action or proceeding  at  law  under
 this  section  or  section two hundred ninety-eight of this article, the
 commissioner or the court may in its discretion award reasonable  attor-
 ney's fees to any prevailing or substantially prevailing party; and with
 respect to a claim of credit discrimination where sex is a basis of such
 discrimination,  and  with respect to all claims of employment discrimi-
 nation in an action or proceeding at law under this section  or  section
 two  hundred ninety-eight of this article, the commissioner or the court
 [shall] MAY IN ITS DISCRETION award reasonable attorney's fees attribut-
 able to such claim to any prevailing party; provided,  however,  that  a
 prevailing  respondent  or defendant in order to recover such reasonable
 attorney's fees must make a motion requesting such fees  and  show  that
 the  action  or  proceeding  brought was frivolous; and further provided
 that in a proceeding brought  in  the  division  of  human  rights,  the
 commissioner  may  only  award  attorney's fees as part of a final order
 after a public  hearing  held  pursuant  to  subdivision  four  of  this
 section.  In  no  case shall attorney's fees be awarded to the division,
 nor shall the division  be  liable  to  a  prevailing  or  substantially
 prevailing  party  for  attorney's  fees,  except in a case in which the
 division is a party to the action or the proceeding  in  the  division's
 capacity  as  an  employer.  In  cases  of  employment discrimination, a
 respondent shall only be liable for attorney's fees under this  subdivi-
 sion  if  the  respondent  has been found liable for having committed an
 unlawful discriminatory  practice.  In  order  to  find  the  action  or
 proceeding  to  be frivolous, the court or the commissioner must find in
 writing one or more of the following:
   (a) the action or proceeding was commenced, used or continued  in  bad
 faith, solely to delay or prolong the resolution of the litigation or to
 harass or maliciously injure another; or
   (b)  the  action or proceeding was commenced or continued in bad faith
 without any reasonable basis and could not be supported by a good  faith

 A. 8424                             3

 argument  for an extension, modification or reversal of existing law. If
 the action or proceeding was promptly discontinued  when  the  party  or
 attorney  learned  or  should have learned that the action or proceeding
 lacked such a reasonable basis, the court may find that the party or the
 attorney did not act in bad faith.
   §  4.  Subdivision (d) of section 16 of a chapter of the laws of 2019,
 amending  the  executive  law  relating  to  increased  protections  for
 protected  classes  and  special protections for employees who have been
 sexually harassed, as proposed in legislative bills numbers A. 8421  and
 S. 6577, is amended to read as follows:
   (d)  Sections  one,  one-a,  two,  three, four, five, six and thirteen
 shall only apply to claims [filed] ACCRUED under  such  sections  on  or
 after the effective date of such sections.
   §  5.  This  act  shall  take  effect on the same date and in the same
 manner as a chapter of the laws of 2019 amending the executive  law  and
 other  laws  relating to increased protections for protected classes and
 special protections for employees who have been  sexually  harassed,  as
 proposed in legislative bills numbers S. 6577 and A. 8421, takes effect.