NY State Senate Bill 2021-S357

Senate Bill S357

2021-2022 Legislative Session

Requires employers to annually report to the division of human rights the number of settlements with employees and other individuals regarding claims of discrimination on the basis of sex

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Archive: Last Bill Status - In Senate Committee Investigations And Government Operations 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to investigations and government operations
Jan 06, 2021	referred to investigations and government operations

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2021-S357 (ACTIVE) - Details

Current Committee:: Senate Investigations And Government Operations
Law Section:: Executive Law
Laws Affected:: Ren §§300 & 301 to be §§308 & 309, add §300, amd §295, Exec L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8740
2019-2020: S1828

2021-S357 (ACTIVE) - Summary

Requires employers to annually report to the division of human rights the number of settlements with employees and other individuals performing services in the workplace regarding claims of discrimination on the basis of sex, including verbal and physical sexual harassment; provides for legal remedies for violations of the reporting requirement; requires the division of human rights to provide an annual report to the governor and the legislature; makes conforming technical changes.

2021-S357 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S357

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the executive law, in relation to requiring employers to
annually report to the division of human rights the number of settle-
ments with employees and other individuals performing services in the
workplace regarding claims of discrimination on the basis of sex,
including verbal and physical sexual harassment; providing for legal
remedies for violations of the reporting requirement; requiring the
division of human rights to provide an annual report to the governor and
the legislature; and to make conforming technical changes

 
PURPOSE:

This bill would require employers to report cases of sexual harassment
in the workplace to the Division of Human Rights.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill renumbers sections of the Executive Law.

Section 2 of the bill adds a new section 300 to the Executive Law that
would require employers to annually report to the Division of Human
Rights the total number of settlements reached with employees and non-
employees regarding the resolution of claims of discrimination on the
basis of sex, including verbal and physical sexual harassment.  This
section also defines settlements and claims of discrimination on the
basis of sex, and grants procedural authority on reporting forms to the
Division.

This section also establishes it is unlawful discriminatory practice to
retaliate or discriminate against an individual on the basis of comply-
ing with this section, and sets forth civil rights and remedies and
damages accordingly.

Nothing in this section shall be construed to interfere with the right
of an employee or non-employee to enter into a confidentiality or
nondisclosure agreement, and an employer may not use such a contract as
basis for failing to submit information to the Division as required by
this section.

Section 3 of the bill adds a new subdivision to section 295 of the Exec-
utive Law setting forth that the Division of Human Rights shall annually
report to the governor and the legislature, and shall make available to
the public on its website, a report on the aggregate number of settle-
ments and charges reported to the Division and any actions taken by the
Division to address these complaints.

Section 4 is the effective date.

 
JUSTIFICATION:

New York State has a tradition of enacting strong labor and antidiscrim-
ination laws to protect employee rights. The pervading secrecy and lack
of data on workplace sexual harassment and discrimination perpetuates a
culture of sexual harassment and abuse, ensuring victims stay silent and
the public stays uninformed.  Reporting on workplace sexual harassment
and discrimination is a matter of public interest. New York State needs
the aggregate data that would be provided in this legislation to better
understand the scale of sexual harassment, hold employers accountable,
and use this information to make informed changes to our state laws.

This legislation will shine a light on workplace sexual harassment, give
the legislature tools to measure the problem and any progress made, and
provide the public critical insight into this issue.  Disclosure will
also help incentivize employers to take steps to end sexual harassment
and discrimination in their workplaces.

Under the legislation, employers would be required to report the total
number of claims and total number of settlements relating to discrimi-
nation on the basis of sex, including verbal and physical sexual harass-
ment. The Division of Human Rights would be required to compile an annu-
al report containing the number, of settlements reported, the number of
claims of sexual harassment and discrimination reported, and a summary
of any actions taken by the Division, including litigation or settle-
ments, and the outcomes of such actions. The Division would submit the
annual report to the Governor and the legislature and make it publicly
available online.

The legislation would apply to employers of all sizes and would cover
employees and non-employees such as independent contractors or freelanc-
ers. It prohibits retaliation or discrimination against individuals who
inquire, comment, or report on an employer's compliance with these
provisions. It also bars an employer from using a confidentiality or
non-disclosure agreement as the basis for failure or refusal to report
required information.

Our state must address the scourge of sexual harassment and discrimi-
nation in our workplaces. Under the legislation, employers would no
longer be permitted to conceal a culture of sexual harassment and
discrimination. It is an essential measure to ensure fair labor stand-
ards, prevent workplace hazards and misconduct, and protect employee
rights. Moreover, it will help the legislature and the public better
understand the scale of the problem in New York State and will serve as
a tool to measure progress on this public hazard.

 
LEGISLATIVE HISTORY:

S.1828 of 2019-2020 (Hoylman): Died in Investigations and Government
Operations
A.0630-A of 2019-2020 (Bozic): Died in Governmental Operations
8.8740 of 2017-2018 (Hoylman): Died in Investigations and Government
Operations

 
EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date upon which it shall have become a law.

2021-S357 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    357
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sens. HOYLMAN, SEPULVEDA -- read twice and ordered print-
   ed, and when printed to be committed  to  the  Committee  on  Investi-
   gations and Government Operations
 
 AN ACT to amend the executive law, in relation to requiring employers to
   annually  report to the division of human rights the number of settle-
   ments with employees and other individuals performing services in  the
   workplace  regarding  claims  of  discrimination  on the basis of sex,
   including verbal and physical sexual harassment; providing  for  legal
   remedies  for  violations  of the reporting requirement; requiring the
   division of human rights to provide an annual report to  the  governor
   and the legislature; and to make conforming technical changes
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Sections 300 and 301 of the executive  law  are  renumbered
 sections 308 and 309.
   §  2. The executive law is amended by adding a new section 300 to read
 as follows:
   § 300. REPORTING  OF  WORKPLACE  SEXUAL  HARASSMENT  CLAIMS.  1.  EACH
 EMPLOYER SUBJECT TO THE PROVISIONS OF THIS ARTICLE SHALL ANNUALLY REPORT
 TO  THE  DIVISION THE TOTAL NUMBER OF SETTLEMENTS REACHED WITH EMPLOYEES
 AND NON-EMPLOYEES REGARDING THE RESOLUTION OF CLAIMS  OF  DISCRIMINATION
 ON THE BASIS OF SEX, INCLUDING VERBAL AND PHYSICAL SEXUAL HARASSMENT.
   2.  SETTLEMENTS  REQUIRED  TO  BE  REPORTED  UNDER  THIS SECTION SHALL
 INCLUDE  ANY  AGREEMENT  OR  ARRANGEMENT  WHERE  ANYTHING  OF  VALUE  IS
 CONFERRED  TO  THE INDIVIDUAL RAISING THE CLAIM IN RETURN FOR SUCH INDI-
 VIDUAL DECLINING TO FURTHER PURSUE THE CLAIM, AND ANY INTERNAL MEDIATION
 OR OTHER WORKPLACE RESOLUTION THAT RESULTS IN THE  INDIVIDUAL  DECLINING
 TO FURTHER PURSUE THE CLAIM.
   3.  CLAIMS  OF DISCRIMINATION ON THE BASIS OF SEX INCLUDE, BUT ARE NOT
 LIMITED TO, CLAIMS OF THE FOLLOWING:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD02842-01-1

 S. 357                              2
 
   (A) INAPPROPRIATE OR UNWANTED TOUCHING;
   (B) VERBAL COMMENTS ABOUT SEX OR OF A SEXUAL NATURE, WHICH MAY INCLUDE
 COMMENTS  TO  AN  INDIVIDUAL  ABOUT  THE  INDIVIDUAL'S BODY OR SEXUAL OR
 ROMANTIC ACTIVITY OR THE BODY OR SEXUAL  OR  ROMANTIC  ACTIVITY  OF  THE
 INDIVIDUAL MAKING THE COMMENTS;
   (C)  REFERRING TO ANOTHER INDIVIDUAL BY A NAME OR NICKNAME OF A ROMAN-
 TIC, DEMEANING, OR SEXUAL NATURE;
   (D) INAPPROPRIATE GESTURES OF A SEXUAL NATURE;
   (E) UNWANTED PROPOSALS FOR SEXUAL ACTIVITY;
   (F) SHOWING ANOTHER INDIVIDUAL PHOTOS OR OTHER IMAGES THAT ARE SEXUAL-
 LY EXPLICIT OR ARE OTHERWISE OF A SEXUAL NATURE; AND
   (G) UNDUE ATTENTION TO OR QUESTIONS ABOUT A PERSON'S SEXUAL  RELATION-
 SHIPS, SEXUAL HISTORY, SEXUAL ORIENTATION, OR GENDER IDENTITY.
   4.  REPORTS REQUIRED TO BE SUBMITTED PURSUANT TO THIS SECTION SHALL BE
 ON FORMS AND ACCORDING TO SUCH PROCEDURES AS THE DIVISION  SHALL  ESTAB-
 LISH.
   5.  (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR ANY PERSON
 ENGAGED IN ANY ACTIVITY TO WHICH THIS SECTION APPLIES  TO  RETALIATE  OR
 DISCRIMINATE AGAINST AN INDIVIDUAL BECAUSE THE INDIVIDUAL HAS:
   (1)  INQUIRED  ABOUT  AN  EMPLOYER'S COMPLIANCE WITH THE PROVISIONS OF
 THIS SECTION;
   (2) COMPLAINED  ABOUT  AN  EMPLOYER'S  LACK  OF  COMPLIANCE  WITH  THE
 PROVISIONS OF THIS SECTION; OR
   (3)  REPORTED  AN EMPLOYER'S LACK OF COMPLIANCE WITH THE PROVISIONS OF
 THIS SECTION TO  THE  DIVISION  OR  TO  ANOTHER  AGENCY,  INCLUDING  LAW
 ENFORCEMENT AGENCIES.
   (B)  IN  ADDITION TO CIVIL RIGHTS PROTECTIONS AND REMEDIES FOR RETALI-
 ATION AVAILABLE UNDER  THIS  ARTICLE,  ANY  EMPLOYER  WHO  VIOLATES  THE
 PROVISIONS  OF  PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE LIABLE TO ANY
 AFFECTED EMPLOYEE OR NON-EMPLOYEE FOR:
   (1) DAMAGES EQUAL TO THE AMOUNT OF ANY WAGES, SALARY, EMPLOYMENT BENE-
 FITS, OR OTHER COMPENSATION DENIED TO OR LOST BY SUCH EMPLOYEE BY REASON
 OF THE VIOLATION;
   (2) THE INTEREST ON THE AMOUNT DESCRIBED IN SUBPARAGRAPH ONE  OF  THIS
 PARAGRAPH  CALCULATED  AT  THE APPLICABLE INTERNAL REVENUE SERVICE (IRS)
 QUARTERLY INTEREST RATES USED TO COMPUTE BACK PAY;
   (3) AN ADDITIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO THE SUM OF THE
 AMOUNT DESCRIBED IN SUBPARAGRAPH  ONE  AND  THE  INTEREST  DESCRIBED  IN
 SUBPARAGRAPH TWO OF THIS PARAGRAPH; AND
   (4)  SUCH  EQUITABLE  RELIEF  AS MAY BE APPROPRIATE, INCLUDING BUT NOT
 LIMITED TO, EMPLOYMENT, REINSTATEMENT AND PROMOTION.
   (C) AN ACTION TO RECOVER THE DAMAGES OR EQUITABLE RELIEF PRESCRIBED IN
 PARAGRAPH (B) OF THIS SUBDIVISION MAY BE MAINTAINED AGAINST ANY EMPLOYER
 IN ANY FEDERAL OR STATE COURT OF COMPETENT JURISDICTION BY  ANY  ONE  OR
 MORE EMPLOYEES FOR AND ON BEHALF OF:
   (1) THE AFFECTED EMPLOYEE OR EMPLOYEES; OR
   (2)  THE  AFFECTED EMPLOYEE OR EMPLOYEES AND OTHER EMPLOYEES SIMILARLY
 SITUATED.
   (D) THE COURT IN SUCH AN ACTION SHALL, IN  ADDITION  TO  ANY  JUDGMENT
 AWARDED  TO  THE PLAINTIFF, ALLOW REASONABLE ATTORNEYS' FEES, REASONABLE
 EXPERT WITNESS FEES, AND OTHER COSTS OF THE ACTION TO  BE  PAID  BY  THE
 DEFENDANT.
   6.  (A)  NOTHING  IN THIS SECTION SHALL BE CONSTRUED TO INTERFERE WITH
 THE RIGHT OF AN EMPLOYEE OR NON-EMPLOYEE TO ENTER INTO A CONFIDENTIALITY
 OR NON-DISCLOSURE AGREEMENT WITH HIS OR HER EMPLOYER WITH RESPECT  TO  A
 CLAIM  OF DISCRIMINATION ON THE BASIS OF SEX, INCLUDING VERBAL AND PHYS-

 S. 357                              3
 
 ICAL SEXUAL HARASSMENT, THE INVESTIGATION OF SUCH A CLAIM, OR  THE  OUT-
 OF-COURT SETTLEMENT OF SUCH A CLAIM.
   (B) AN EMPLOYER MAY NOT USE A CONFIDENTIALITY OR NON-DISCLOSURE AGREE-
 MENT DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION AS A BASIS FOR FAIL-
 ING  OR  REFUSING  TO SUBMIT TO THE DIVISION THE INFORMATION REQUIRED BY
 SUBDIVISIONS ONE AND TWO OF THIS SECTION.
   (C) A CONFIDENTIALITY OR  NON-DISCLOSURE  AGREEMENT  AS  DESCRIBED  IN
 PARAGRAPH  (A) OF THIS SUBDIVISION SHALL NOT BE CONSTRUED AS PROHIBITING
 ANY PARTY TO SUCH AGREEMENT FROM COOPERATING WITH LAW ENFORCEMENT INVES-
 TIGATIONS INTO ANY CLAIMS OF DISCRIMINATION ON THE BASIS OF SEX, INCLUD-
 ING VERBAL AND PHYSICAL SEXUAL HARASSMENT.
   7. AS USED IN THIS SECTION:
   (A) "EMPLOYER" INCLUDES ALL EMPLOYERS WITHIN THE STATE; AND
   (B) "NON-EMPLOYEE" MEANS A PERSON OTHER THAN AN EMPLOYEE WHO  PROVIDES
 SERVICES  PURSUANT  TO  A  CONTRACT OR OTHER AGREEMENT IN THE WORKPLACE,
 INCLUDING BUT NOT LIMITED  TO,  A  VENDOR,  CONSULTANT,  FREE-LANCER  OR
 EMPLOYEE OF A TEMPORARY OR STAFFING AGENCY.
   §  3.  Section  295  of  the  executive law is amended by adding a new
 subdivision 17 to read as follows:
   17. ANNUALLY, ON OR BEFORE APRIL FIRST, THE DIVISION SHALL  SUBMIT  TO
 THE  GOVERNOR  AND  TO  THE LEGISLATURE, AND SHALL MAKE AVAILABLE TO THE
 PUBLIC ON ITS WEBSITE, A REPORT  CONTAINING  THE  FOLLOWING  INFORMATION
 RELATING  TO  CLAIMS  OF  DISCRIMINATION  ON THE BASIS OF SEX, INCLUDING
 VERBAL AND PHYSICAL SEXUAL HARASSMENT:
   (A) THE NUMBER OF SETTLEMENTS THAT WERE REPORTED TO  THE  DIVISION  AS
 DEFINED BY AND REPORTED PURSUANT TO THIS SECTION;
   (B)  THE NUMBER OF CHARGES ALLEGING DISCRIMINATION ON THE BASIS OF SEX
 THAT WERE REPORTED TO THE DIVISION, FROM ANY  SOURCE,  INCLUDING  VERBAL
 AND PHYSICAL SEXUAL HARASSMENT MADE DIRECTLY TO THE DIVISION; AND
   (C)  A SUMMARY OF ANY ACTION TAKEN BY THE DIVISION BASED UPON ANY SUCH
 CHARGES OR COMPLAINTS COLLECTED PURSUANT TO THIS SECTION, SUCH AS  LITI-
 GATION OR SETTLEMENTS FACILITATED BY THE DIVISION PERTAINING TO DISCRIM-
 INATION  ON  THE  BASIS  OF  SEX,  INCLUDING  VERBAL AND PHYSICAL SEXUAL
 HARASSMENT, INCLUDING  A  BRIEF  DESCRIPTION  OF  ANY  OUTCOME  OF  SUCH
 ACTIONS.
   §  4. This act shall take effect on the first of January next succeed-
 ing the date upon which it shall have become a law. Effective immediate-
 ly the addition, amendment and/or  repeal  of  any  rule  or  regulation
 necessary  for  the implementation of this act on its effective date are
 authorized to be made on or before such date.

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Senate Bill S357

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Sponsored By

Brad Hoylman-Sigal