BILL NUMBER: S3395A

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 or a
locality is considered an employer of anyone serving in the state or
local executive, judiciary, and legislative branches, including the
staff of elected officials or judges and elected officials themselves.

 
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 and extends this  provision  to
              

localities as well.

  Section 2 sets the effective date.

 
JUSTIFICATION:

Chapter  161 of 2019 instituted sweeping changes to workplace harassment
laws in New York State. The legislature  took  comprehensive  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, howev-
er, another loophole left to close.

Though some readers would plainly interpret subdivision 5 of  the  Human
Rights  Law, which details that the term "employer" includes all employ-
ers within the state, as inclusive of the state itself, it has not  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. Most recently, localities have used the  argument  that  elected
officials  themselves  are  not  employed by such locality, being chosen
democratically by the people - and so the locality cannot be held liable
under the law for the harassing actions such  officials  direct  towards
their staff.  It is therefore necessary to once and for all clarify that
the  state  and localities 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  anti-harassment  regulations  protect  both public and private
employees.

 
PRIOR LEGISLATIVE HISTORY:
2020: S6828 - Passed Senate, died in Assembly
2019: S6828 - Referred to Rules

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This  act shall take effect immediately and shall be deemed to have been
in full force and effect as of the effective  date  of  Chapter  161  of
2019.