BILL NUMBER: S2573A

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to permit-
ting certain testimony and evidence by a person alleging discrimination

 
PURPOSE OR GENERAL IDEA OF BILL:

To allow reports of employment discrimination made by a victim of such
discrimination to be admitted as evidence in a civil trial

 
SUMMARY OF PROVISIONS:

Section one adds a new rule 4551 to the Civil Practice Law and Rules
(CPLR) to provide that in a civil action, evidence that a party alleging
discrimination reported such discrimination to another person may be
admitted as evidence. In order for such evidence to be admissible, such
a report must have been made before the last adverse action being
complained of is taken, or promptly afterward. The judge shall take into
account the individual circumstances of each case and relevant context
              

when determining promptness.

Section two sets the effective date.

 
JUSTIFICATION:

In criminal and civil trials in the state of New York, hearsay is gener-
ally unable to serve as evidence unless it falls within one of a few
noted exceptions. In criminal cases of rape and sexual assault, for
example, New York courts have established a common law exception to the
hearsay ban by which evidence that a victim promptly reported the inci-
dent to another person such as a friend or family member may be admitted
to corroborate the victim's claim that such incident occurred. This
rule, known as the "prompt outcry" exception to the hearsay ban, was
created in recognition of the fact that "prompt complaint (is) 'natural'
conduct on the part of (a victim), and failure to complain therefore
(casts) doubt on the complainant's veracity; outcry evidence was consid-
ered necessary to rebut the adverse inference a jury would inevitably
draw if not presented with proof of a timely complaint" (People v Rice,
75 N.Y.2d 929, 931 (1990)). Prompt outcry evidence is subject to the
same analysis of reliability as other exceptions to the hearsay ban, and
serves as an important evidentiary tool to help bring sexual offenders
to justice in situations where other evidence might be difficult to come
by.

This bill extends the same logic behind the prompt outcry exception in
criminal cases to civil cases as well. While courts have begun to recog-
nize the viability of prompt outcry in non-criminal cases, it has yet to
be explicitly extended to civil trials of sexual harassment and other
types of discrimination. Without a statutory right to admit this kind of
evidence at a civil trial, victims of harassment are faced with a severe
disadvantage: they are both unable to submit evidence that they reported
the harassment to another person, and unable to contest any doubt
surfacing in a jury's mind when no evidence of a contemporaneous
complaint is presented.


This bill counters this disadvantage by allowing victims to submit
evidence of a report of discrimination in a civil trial, so long as such
report was made before the last adverse action being complained of was
taken or promptly thereafter. Judges shall be able to account for the
individual circumstances of the case when determining "promptness,"
which can be a relative concept. By explicitly allowing this crucial
detail as evidence in civil trials, New York can help victims of work-
place discrimination seek justice while aligning evidentiary rules in
similar criminal and civil cases. This update to the rules governing our
state's civil trials is the least we can do for victims seeking recom-
pense for the discrimination they have faced. Counting reports of
misconduct as admissible evidence is a critical step toward ensuring
survivors' stories are heard and believed, which is why courts long ago
established the prompt outcry exception to the hearsay ban in cases of
sexual assault. Extending this admissibility to cases of sexual harass-
ment is the next logical step.

 
PRIOR LEGISLATIVE HISTORY:

2023: S2573 - Passed Senate, died in Assembly

2022: S8297 - Passed Senate, died in Assembly

 
FISCAL IMPLICATIONS:

TBD

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