S. 4109 2
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
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:
S. 4109 3
§ 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-
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, GENDER IDENTITY OR EXPRESSION, AGE,
DISABILITY, MILITARY STATUS, FAMILIAL STATUS, MARITAL STATUS, PREDISPOS-
ING GENETIC CHARACTERISTICS, OR DOMESTIC VIOLENCE VICTIM STATUS.
a. Such model [sexual harassment prevention] DISCRIMINATION PREVENTION
policy shall: (i) prohibit [sexual harassment] DISCRIMINATION consistent
S. 4109 4
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-
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 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:
S. 4109 5
§ 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, GENDER IDENTITY
OR EXPRESSION, AGE, DISABILITY, MILITARY STATUS, FAMILIAL STATUS, MARI-
TAL 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 providing 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 harass-
ment] DISCRIMINATION OR HARASSMENT BASED ON RACE, COLOR, SEX, NATIONAL
ORIGIN, CREED, SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, AGE,
DISABILITY, MILITARY STATUS, FAMILIAL STATUS, MARITAL STATUS, PREDISPOS-
ING 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, GENDER IDENTITY OR EXPRESSION, AGE, DISABILITY, MILITARY
STATUS, FAMILIAL STATUS, MARITAL STATUS, PREDISPOSING GENETIC CHARACTER-
ISTICS, 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.
§ 9. 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.
§ 10. 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, GENDER IDENTITY OR EXPRESSION,
MILITARY STATUS, DISABILITY, PREDISPOSING GENETIC CHARACTERISTICS, FAMI-
LIAL STATUS, MARITAL STATUS, OR DOMESTIC VIOLENCE VICTIM STATUS, or for
enforcement of any order or determination of such commissioner or divi-
sion 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, GENDER IDENTITY OR EXPRESSION, MILITARY STATUS,
DISABILITY, PREDISPOSING GENETIC CHARACTERISTICS, FAMILIAL STATUS, MARI-
TAL STATUS, OR DOMESTIC VIOLENCE VICTIM STATUS, in any case where in his
judgment, because of the extent of the offense, such prosecution cannot
S. 4109 6
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.
§ 11. 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.
§ 12. This act shall take effect immediately; provided however:
(a) section one of this act shall take effect on the first of January
next succeeding the date on which it shall have become a law;
(b) sections two, five, and six of this act shall take effect on the
ninetieth day after they shall have become a law; and
(c) section seven of this act shall take effect on the one hundred
eightieth day after it shall have become a law.
(d) effective immediately, the addition, amendment and/or repeal of
any rule or regulation necessary for the implementation of this act on
its effective date are authorized and directed to be made and completed
on or before such effective date.