BILL NUMBER: S9293A

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the civil rights law, in relation to actions involving
public petition and participation

 
PURPOSE OR GENERAL IDEA OF BILL:

To protect victims of employment discrimination from libel or defamation
suits when they file internal complaints about the discrimination they
are experiencing.

 
SUMMARY OF PROVISIONS:

Section one of the bill amends subdivision one of section 70-a of the
Civil Rights Law to provide that compensatory damages under the
anti-SLAPP statute to actions inhibiting rights under any federal,
state, or local law preventing employment discrimination or retalation.

Section two of the bill amends section 76-a of the Civil Rights Law to
              

include "protected allegations" as an "action involving public petition
and participation" in the anti-SLAPP statute.

Section two provides that this act shall take effect immediately and
shall apply to all actions commenced on and after such date.

 
JUSTIFICATION:

This bill aims to protect victims of workplace discrimination based on a
protected class (age, race, creed, color, national origin, sexual orien-
tation, gender identity or expression, military status, sex, disability,
predisposing genetic characteristics, familial status, marital status,
or status as a victim of domestic violence) covered under the NYS or NYC
human rights law or federal anti-discrimination law. Victims of discrim-
ination such as sexual harassment will frequently find themselves the
subjects of defamation suits for libel or slander as a result of filing
internal complaints. These retaliatory tactics then have the desired
effect of getting the victim to abandon his or her complaint or signif-
icantly delaying the investigation and adjudication of the underlying
harassment as well as deterring future victims at the worksite from
coming forward.

This bill aims to eliminate these nefarious court actions by making them
subject to New York's anti-SLAPP statute, which helps to defeat Strate-
gic Lawsuits Against Public Participation (SLAPP). The anti-SLAPP law,
covered in Section 76-a of the Civil Rights Law, helps fend off calcu-
lated lawsuits that are intended to silence a group or individual with
the cost and ordeal of litigation. If the defendant being sued, such as
a journalist, believes that the lawsuit being brought is merely intended
to silence him or her, he or she provides proof to the court that the
claim of the case relates to his or her exercise of free speech rights
"on a matter of public interest." The defendant must then submit docu-
mentary evidence and sworn statements in support of the motion while the
discovery process is put on hold. The burden of proof then shifts to the
plaintiff bringing the suit to show that the claim has a "substantial
basis in law." If they cannot do so and the action is dismissed, the
plaintiff must pay the defendant's attorney's fees and litigation costs.
The defendant may also be awarded "other compensatory damages" and puni-
tive damages if he or she can show that the case was brought with the
sole intent to harass, intimidate, punish, or maliciously inhibit his or
her free speech or association rights.

New York significantly expanded its anti-SLAPP protections with Ch.  250
of 2020, which previously applied only to lawsuits initiated by business
entities that were involved in a public application or permit. This bill
would build upon this 2020 expansion by providing that "protected alle-
gations," defined as internal workplace complaints of discrimination or
retaliation, are also subject to anti-SLAPP. The bill is careful to
include agents of employees and employers in protected allegations, as
employees will frequently go through third parties to pursue defamation
suits by having a relevant supervisor, rather than the employer itself,
sue the employee for defamation. In other instances, employers will
pursue an action against an aggrieved employee's lawyer in addition to
the employee him or herself (while the Human Rights Law bars retaliation
for complaints of discrimination from employees and contractors, case
law is not clear on the point of whether or not employees' lawyers are
also protected). It is the sponsor's belief that, in making frivolous
defamation suits easier to dismiss as well as more likely to result in
attorneys fees and other recompense for the defendant when they are
wrongly brought, victims of workplace discrimination and/or retaliation
will be better protected when they decide to speak up about the harms
they are witnessing or experiencing at the jobsite.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all actions
commenced on or after such date.