S T A T E O F N E W Y O R K
________________________________________________________________________
500
2021-2022 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 6, 2021
___________
Introduced by M. of A. L. ROSENTHAL -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, in relation to the awarding of puni-
tive damages to persons aggrieved by sexual harassment
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph c of subdivision 4 and subdivision 9 of section
297 of the executive law, paragraph c of subdivision 4 as amended by
chapter 160 of the laws of 2019, and subdivision 9 as separately amended
by chapter 160 of the laws of 2019 and chapter 236 of the laws of 2020,
are amended to read as follows:
c. Within one hundred eighty days after the commencement of such hear-
ing, a determination shall be made and an order served as hereinafter
provided. If, upon all the evidence at the hearing, the commissioner
shall find that a respondent has engaged in any unlawful discriminatory
practice as defined in this article, the commissioner shall state find-
ings of fact and shall issue and cause to be served on such respondent
an order, based on such findings and setting them forth, and including
such of the following provisions as in the judgment of the division will
effectuate the purposes of this article: (i) requiring such respondent
to cease and desist from such unlawful discriminatory practice; (ii)
requiring such respondent to take such affirmative action, including
(but not limited to) hiring, reinstatement or upgrading of employees,
with or without back pay, restoration to membership in any respondent
labor organization, admission to or participation in a guidance program,
apprenticeship training program, on-the-job training program or other
occupational training or retraining program, the extension of full,
equal and unsegregated accommodations, advantages, facilities and privi-
leges to all persons, granting the credit which was the subject of any
complaint, evaluating applicants for membership in a place of accommo-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00715-01-1
A. 500 2
dation without discrimination based on race, creed, color, national
origin, sex, disability or marital status, and without retaliation or
discrimination based on opposition to practices forbidden by this arti-
cle or filing a complaint, testifying or assisting in any proceeding
under this article; (iii) awarding of compensatory damages to the person
aggrieved by such practice; (iv) awarding of punitive damages, in cases
of employment discrimination related to private employers, and, in cases
of housing discrimination, with damages in housing discrimination cases
in an amount not to exceed ten thousand dollars, to the person aggrieved
by such practice; (v) requiring payment to the state of profits obtained
by a respondent through the commission of unlawful discriminatory acts
described in subdivision three-b of section two hundred ninety-six of
this article; [and] (vi) assessing civil fines and penalties, in an
amount not to exceed fifty thousand dollars, to be paid to the state by
a respondent found to have committed an unlawful discriminatory act, or
not to exceed one hundred thousand dollars to be paid to the state by a
respondent found to have committed an unlawful discriminatory act which
is found to be willful, wanton or malicious; (vii) requiring a report of
the manner of compliance; AND (VIII) AWARDING OF PUNITIVE DAMAGES, IN
CASES OF SEXUAL HARASSMENT ONLY, TO THE PERSON AGGRIEVED BY SUCH PRAC-
TICE. If, upon all the evidence, the commissioner shall find that a
respondent has not engaged in any such unlawful discriminatory practice,
he or she shall state findings of fact and shall issue and cause to be
served on the complainant an order based on such findings and setting
them forth dismissing the said complaint as to such respondent. A copy
of each order issued by the commissioner shall be delivered in all cases
to the attorney general, the secretary of state, if he or she has issued
a license to the respondent, and such other public officers as the divi-
sion deems proper, and if any such order issued by the commissioner
concerns a regulated creditor, the commissioner shall forward a copy of
any such order to the superintendent. A copy of any complaint filed
against any respondent who has previously entered into a conciliation
agreement pursuant to paragraph a of subdivision three of this section
or as to whom an order of the division has previously been entered
pursuant to this paragraph shall be delivered to the attorney general,
to the secretary of state if he or she has issued a license to the
respondent and to such other public officers as the division deems prop-
er, and if any such respondent is a regulated creditor, the commissioner
shall forward a copy of any such complaint to the superintendent.
9. Any person claiming to be aggrieved by an unlawful discriminatory
practice shall have a cause of action in any court of appropriate juris-
diction for damages, including, in cases of employment discrimination
related to private employers and housing discrimination AND SEXUAL
HARASSMENT only, punitive damages, and such other remedies as may be
appropriate, including any civil fines and penalties provided in subdi-
vision four of this section, unless such person had filed a complaint
hereunder or with any local commission on human rights, or with the
superintendent pursuant to the provisions of section two hundred nine-
ty-six-a of this [chapter] ARTICLE, provided that, where the division
has dismissed such complaint on the grounds of administrative conven-
ience, on the grounds of untimeliness, or on the grounds that the
election of remedies is annulled, such person shall maintain all rights
to bring suit as if no complaint had been filed with the division. At
any time prior to a hearing before a hearing examiner, a person who has
a complaint pending at the division may request that the division
dismiss the complaint and annul his or her election of remedies so that
A. 500 3
the human rights law claim may be pursued in court, and the division
may, upon such request, dismiss the complaint on the grounds that such
person's election of an administrative remedy is annulled. Notwithstand-
ing subdivision (a) of section two hundred four of the civil practice
law and rules, if a complaint is so annulled by the division, upon the
request of the party bringing such complaint before the division, such
party's rights to bring such cause of action before a court of appropri-
ate jurisdiction shall be limited by the statute of limitations in
effect in such court at the time the complaint was initially filed with
the division. Any party to a housing discrimination complaint shall have
the right within twenty days following a determination of probable cause
pursuant to subdivision two of this section to elect to have an action
commenced in a civil court, and an attorney representing the division of
human rights will be appointed to present the complaint in court, or,
with the consent of the division, the case may be presented by
complainant's attorney. A complaint filed by the equal employment oppor-
tunity commission to comply with the requirements of 42 USC 2000e-5(c)
and 42 USC 12117(a) and 29 USC 633(b) shall not constitute the filing of
a complaint within the meaning of this subdivision. No person who has
initiated any action in a court of competent jurisdiction or who has an
action pending before any administrative agency under any other law of
the state based upon an act which would be an unlawful discriminatory
practice under this article, may file a complaint with respect to the
same grievance under this section or under section two hundred ninety-
six-a of this article. In cases of housing discrimination only, a person
whose complaint has been dismissed by the division after investigation
for lack of jurisdiction or lack of probable cause may file the same
cause of action in a court of appropriate jurisdiction pursuant to this
section, unless judicial review of such dismissal has been sought pursu-
ant to section two hundred ninety-eight of this article.
§ 2. This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, that is chapter 236 of the laws of
2020 shall not have taken effect on or before such date then the amend-
ments to subdivision 9 of section 297 of the executive law as amended by
section one of this act, shall take effect on the same date and in the
same manner as such chapter of the laws of 2020, takes effect.