BILL NUMBER: S6828

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the executive law, in relation to the definition of
"employer" for purposes of the human rights law

 
PURPOSE OR GENERAL IDEA OF BILL:

To close the "personal staff' loophole by clarifying that the state is
considered an employer of anyone serving in the executive, judiciary,
and legislative branches, including the staff of elected officials or
judges.

 
SUMMARY OF PROVISIONS:

Section 1 amends section 292 of the Executive Law, as amended by Ch.
161 of the laws of 2019, to provide that the state shall be considered
the direct employer of elected and appointed officials and their staff
for the purposes of the Human Rights Law.
              

Section 2 sets the effective date.

 
JUSTIFICATION:

Chapter 161 of 2019 comprises the most comprehensive and aggressive
anti-harassment legislation to date. The legislature took historic
action to close loopholes that allowed employers to escape liability for
the behavior of their employers, eliminating parts of the
Faragher/Ellerth defense and requiring that employers provide all
employees with a notice of their office's sexual harassment prevention
policy. There is, however, another loophole left to close.

Though some readers would plainly interpret subdivision 5 of the Human
Rights Law, detailing that the term "employer" includes all employers
within the state, as inclusive of the state itself, it has not been been
so construed by the courts. In at least three high-profile cases to
date, judges have agreed with arguments of attorneys general that the
state is not the direct employer of either the staff of elected offi-
cials in the Senate and Assembly or of court attorneys who are working
for state judges. They have, instead, deferred to Title VII of the Civil
Rights Act, which excludes elected officials and their "personal staff'
from protections against harassment. This provision has even been
construed to include the personal staff of appointed officials such as
judges.

It is therefore necessary to once and for all clarify that the state
shall not be able to avoid responsibility for harassment of public
employees by citing a loophole in federal law. This legislation will
rectify this injustice by ensuring that 2019's sweeping new anti-harass-
ment regulations protect both public and private employees.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This act shall take effect at the same time as Chapter 161. If Ch. 161
goes into effect and the act has not yet passed, it shall be deemed to
have been in effect as of the effective date of Ch. 161.