BILL NUMBER: S4493

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 section 70-a of the Civil Rights Law to
provide compensatory damages under the anti-SLAPP statute to actions
inhibiting rights under any federal, state, or local law preventing
employment discrimination or retaliation.

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 their complaint or significantly
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 is merely intended to silence
them, they provide proof to the court that the claim of the case relates
to their exercise of free speech rights "on a matter of public inter-
est." The defendant must then submit documentary 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 punitive damages if they can
show that the case was brought with the sole intent to harass, intim-
idate, punish, or maliciously inhibit his or her free speech or associ-
ation 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 themselves (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 defama-
tion suits easier to dismiss as well as more likely to result in attor-
neys fees and other recompense for the defendant when they are wrongly
brought, victims of workplace discriminat ion 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:

2022: S9293A - Passed Senate, died in Assembly

 
FISCAL IMPLICATIONS:

TBD

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