To strengthen provisions of the New York State Human Rights law for sexual discrimination claims in employment arrangements, to prohibit the use of mandatory arbitration contract provisions for sexual harassment in employment contracts, and to bar confidentiality provisions relating to sexual harassment actions and settlements. SUMMARY OF SPECIFIC PROVISIONS : Section 1. Amends subdivision 5 of section 292 of the Executive law to provide that in an action for unlawful discriminatory practices, with respect to sexual harassment only, the term "employer" shall include those entities benefiting from or utilizing the services of an independent contractor. The bill also adds a new section 35 to the Executive law to define "sexual harassment" as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates a hostile or offensive work environment without regard to actual economic injury to or discharge of the complainant". Section 2. Adds a new section 5003-b to the CPLR to provide that no court shall accept a settlement or dismissal of an action seeking damages for sexual harassment, including any confidentiality agreement or nondisclosure agreement that provides for the nondisclosure of the acts constituting the sexual harassment and the admitted perpetrator thereof. Section 3. Adds a new section 398-f to the general business law to prohibit the future use of mandatory arbitration clauses relating to unlawful discriminatory practices based upon sexual harassment. Section 4. Provides that this act shall become effective sixty days after enactment. JUSTIFICATION : Recent allegations and admissions of guilt by high profile public figures are demonstrating the inadequacies in New York law in protecting victims of sexual harassment in varied employment settings. New York State Human Rights law currently does not authorize a sexual harassment civil rights complaint by an individual working as an independent contractor. Contract workers and freelancers, who do not have traditional employment protections, are perceived as being more in control of their work. They can be subject to sexual harassment without recourse because the employer will contend they have no legal responsibility for their work environment. Additionally unskilled low wage workers who perform duties on a for hire basis may have fewer readily available job choices. They should not be forced to endure sexual harassment out of the fear of losing their job. As the numbers of contract workers, consultants, freelancers and temporary workers increase in the workforce; they face a loss of traditional employment protections including the traditional sexual discrimination protections found in an employer-employee relationship. This law would authorize a civil rights action for independent contractors against any entity benefitting from or utilizing their services. The law also lacks a clear definition of behavior that constitutes sexual harassment. This bill codifies a definition of "sexual harassment" which is currently used administratively by the New York State Division of Human Rights. This statutory definition will provide a consistent reference for the courts to administer this law on a uniform basis. Further, this bill will prohibit any court from accepting any settlement in any action or proceeding alleging sexual harassment that includes any confidentiality agreement or provision that provides for non-disclosure as to the acts of sexual harassment and the admitted perpetrator. This practice of mandatory disclosure will help ensure that the public is aware of the offending behavior. It will help to discourage large settlements negotiated mainly for the purposes of not disclosing the perpetrator's identity. Currently, confidentiality agreements can result in allowing the offender to continue in a pattern of sexually harassing behavior amid other unsuspecting employees in the workplace. This bill also amends the general business law to ban the use, in employment contracts, of mandatory arbitration clauses for complaints involving sexual harassment.
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REFERRED TO FINANCEWed, Jan 3rd 2018
REFERRED TO RULESFri, Dec 15th 2017