NY State Senate Bill 2019-S3941

Senate Bill S3941

2019-2020 Legislative Session

Relates to establishing sexual harassment prevention training protocols within the private sector

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Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to labor
Feb 21, 2019	referred to labor

co-Sponsors

2019-S3941 (ACTIVE) - Details

See Assembly Version of this Bill:: A7485
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §44, Lab L; amd §§296 & 292, add §96-b, Exec L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S7193, A8910
2021-2022: A395
2023-2024: A562

2019-S3941 (ACTIVE) - Summary

Relates to establishing sexual harassment prevention training protocols within the private sector including a model management policy and training program and how to properly disseminate information to employers and employees.

2019-S3941 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S3941

SPONSOR: KRUEGER
 
TITLE OF BILL:

An act to amend the labor law and the executive law, in relation to
establishing sexual harassment prevention protocols within the private
sector

 
PURPOSE:

To prevent sexual harassment in the workplace, provide remedies to
address sexual harassment, and proscribe affirmative conduct to help
prevent future incidents of sexual harassment

 
SUMMARY OF PROVISIONS:

Section 1 amends the labor law to require the Department of Labor to
draft a model sexual harassment policy and model sexual harassment
prevention training for employees, in order to allow all employers with
easier access to resources to prevent sexual harassment in the work-

place. The Department may consult with the Division of Human Rights in
the creation and distribution of the model policy and training program.

Section 2 amends the executive law to clearly add sexual harassment as
an unlawful discriminatory practice. Sexual harassment is defined as
unwelcome sexual advances, requests for sexual favors, or other verbal
or physical conduct of a sexual nature, where a) submission to the above
conduct is explicitly or implicitly a condition of employment, b)
submission or rejection is the basis for an employment decision affect-
ing the individual, or c) engaging in the above conduct when it has the
purpose or effect of interfering with an individual's work performance
by creating an intimidating, hostile, or offensive working environment.
Section 3 also ensures that any individual with supervisory authority is
considered a supervisor for the purpose of vicarious liability to the
employer. While sexual harassment is generally viewed by courts as being
prohibited based on discrimination on the basis of gender, adding a
clear and concise definition as already provided for in the case of
domestic workers will provide clear standards to the courts and employ-
ers that sexual harassment is unlawful and subject to specific remedies.

Section 3 amends the executive law and provides that in a case of
discrimination on the basis of sex or a case of sexual harassment, a
practice may be discriminatory regardless of the pervasiveness or seri-
ousness of the conduct, as long as the conduct is motivated in whole or
part by the individual's gender. A covered entity may rebut the claim
with an affirmative defense that the conduct was no greater than what a
reasonable victim of discrimination would consider petty slights or
trivial annoyances. This section would essentially ensure that one note-
worthy act of harassment or gender discrimination was unlawful, in
response to certain cases and patterns of practice where minor acts of
harassment are not treated as unlawful until a broad pattern can be
demonstrated.

Section 4 amends the executive law to provide that an employee of a
business with less than four employees may bring any case of gender
discrimination, as opposed to current law that limits such cases to only
acts of sexual harassment. This section ensures that the broadest type

of conduct motivated by a person's gender, including but not limited to
sexual harassment, is covered under the Human Rights Law.

Section 5 amends the executive law to require the Department of State to
provide notice to an individual incorporating a business of the anti-
sexual harassment laws covered in this legislation. The notice shall
include the definition of sexual harassment under Section 2 of this act.

Section 6 sets the effective date as 180 days after becoming a law.

 
JUSTIFICATION:

Several high profile incidents of sexual harassment in both the public
and private sectors have emphasized the inadequate state remedies for
employees who are victims of sexual harassment. The state's failure to
properly address such discriminatory conduct fails to promote gender
equality in the workplace and subjects employees to hostile conduct at
work. In New York, sexual harassment is not even defined as an unlawful
discriminatory conduct under the state human rights law for all employ-
ees. Many other states have adopted anti-sexual harassment provision of
law to help employees experience workplace conditions free of hostile
sexual conduct and help employers clearly understand what conduct shall
be deemed unlawful.

Basic steps to outlaw sexual harassment in the workplace and promote
education about improper conduct can improve workplace conditions.  This
legislation provides a definition of sexual harassment and would make it
easier for a victim of sexual harassment to receive redress for their
experiences. By adding a state definition and strengthening legal reme-
dies against such conduct, this legislation will help address current
workplace grievances and promote harassment-free workplaces for all
employees to enjoy.

 
LEGISLATIVE HISTORY:

2017-2018 S.7193/A.8910 Rozic

 
FISCAL IMPACT:

Minimal to the state.

 
EFFECTIVE DATE:
180 days after becoming law.

2019-S3941 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3941
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 21, 2019
                                ___________
 
 Introduced  by Sens. KRUEGER, BENJAMIN, GOUNARDES, LIU -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Labor
 
 AN  ACT  to  amend  the  labor law and the executive law, in relation to
   establishing sexual harassment prevention protocols within the private
   sector

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    The  labor law is amended by adding a new section 44 to
 read as follows:
   § 44. PREVENTION OF SEXUAL HARASSMENT. 1. THE DEPARTMENT SHALL PRODUCE
 A STRONG MODEL MANAGEMENT  POLICY  STATEMENT  DEFINING  AND  PROHIBITING
 SEXUAL  HARASSMENT  IN  THE  WORKPLACE.  SUCH MODEL POLICY SHALL INCLUDE
 RECOMMENDATIONS ON HOW EMPLOYERS MAY PROVIDE INFORMATION AND REMEDIES TO
 EMPLOYEES, INCLUDING BUT NOT LIMITED TO A STATEMENT INFORMING  EMPLOYEES
 OF THEIR RIGHTS OF REDRESS, AND THE AVAILABILITY OF COMPLAINT RESOLUTION
 CHANNELS  AND ASSISTANCE WITH INCIDENTS OF SEXUAL HARASSMENT. SUCH MODEL
 POLICY STATEMENT SHALL CLEARLY STATE THAT SEXUAL HARASSMENT  IS  CONSID-
 ERED  A  FORM OF EMPLOYEE MISCONDUCT AND THAT SANCTIONS WILL BE ENFORCED
 AGAINST INDIVIDUALS ENGAGING IN SEXUAL HARASSMENT AND AGAINST SUPERVISO-
 RY AND MANAGERIAL PERSONNEL WHO KNOWINGLY ALLOW SUCH BEHAVIOR TO CONTIN-
 UE.
   2. THE DEPARTMENT SHALL PRODUCE A MODEL TRAINING  PROGRAM  TO  PREVENT
 SEXUAL HARASSMENT IN THE WORKPLACE.
   (A)  SUCH  MODEL TRAINING PROGRAM SHALL INCLUDE INFORMATION CONCERNING
 THE FEDERAL AND STATE STATUTORY PROVISIONS CONCERNING SEXUAL  HARASSMENT
 AND REMEDIES AVAILABLE TO VICTIMS OF SEXUAL HARASSMENT.
   (B)  SUCH  DEPARTMENT  SHALL  ALSO  INCLUDE  INFORMATION IN SUCH MODEL
 PROGRAM SPECIFICALLY ADDRESSING CONDUCT BY SUPERVISORS AS  BOTH  PARTIC-
 IPANTS  IN  A  GENERAL  TRAINING  PROGRAM  AND  IN A SUPERVISOR-SPECIFIC
 PROGRAM TO PREVENT SEXUAL HARASSMENT IN THE WORKPLACE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD08887-01-9

 S. 3941                             2
 
   3. THE DEPARTMENT MAY CONSULT WITH THE DIVISION OF HUMAN RIGHTS IN THE
 PRODUCTION OF INFORMATION SET FORTH UNDER THIS SECTION.
   4. THE COMMISSIONER SHALL PROMULGATE REGULATIONS ALLOWING FOR DISTRIB-
 UTION  OF  THE AVAILABILITY OF THE INFORMATION SET FORTH IN THIS SECTION
 TO EMPLOYERS AND THE PUBLIC.
   § 2. Section 296 of the executive law is amended  by  adding  two  new
 subdivisions 1-b and 22 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
 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.
   § 3. 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.
   § 4. The executive law is amended by adding a new section 96-b to read
 as follows:
   § 96-B. NOTIFICATION OF LAWS ON SEXUAL HARASSMENT IN THE WORKPLACE. 1.
 FOR  ANY  ENTITY FILING AND PAYING FILING FEES UNDER SUBDIVISION NINE OF
 SECTION NINETY-SIX OF THIS ARTICLE, THE DEPARTMENT SHALL RESPOND  TO  AN
 AUTHORIZED  INDIVIDUAL  ON BEHALF OF THE ENTITY WITH NOTICE OF STATE LAW
 ON SEXUAL HARASSMENT IN THE WORKPLACE.
   2. NOTICE PROVIDED TO FILING ENTITIES SHALL INCLUDE INFORMATION PURSU-
 ANT TO SECTION FORTY-FOUR OF THE LABOR  LAW  AND  SUBDIVISION  ONE-B  OF
 SECTION  TWO  HUNDRED NINETY-SIX OF THIS CHAPTER. THE SECRETARY OF STATE

 S. 3941                             3
 
 SHALL PROMULGATE REGULATIONS TO ADHERE TO  THIS  SECTION  INCLUDING  THE
 NATURE  OF  THE  REQUIRED  NOTICE,  THE TIMING THAT SUCH NOTICE SHALL BE
 DELIVERED TO AN AUTHORIZED INDIVIDUAL ON BEHALF OF A FILING ENTITY,  AND
 ANY ADDITIONAL INFORMATION TO BE INCLUDED IN SUCH NOTICE.
   § 5. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

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Senate Bill S3941

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Sponsored By

Liz Krueger

Archive: Last Bill Status - In Senate Committee Labor Committee

co-Sponsors

Brian Benjamin

David Carlucci

Andrew Gounardes

John C. Liu

2019-S3941 (ACTIVE) - Details

2019-S3941 (ACTIVE) - Summary

2019-S3941 (ACTIVE) - Sponsor Memo

2019-S3941 (ACTIVE) - Bill Text download pdf

Comments