Ω Report on New York State Joint Legislative Hearings

REPORT ON NEW YORK STATE JOINT LEGISLATIVE HEARINGS ON SEXUAL HARASSMENT

Senator Alessandra Biaggi Chair of Committee on Ethics and Internal Governance

Senator Julia Salazar Chair of Committee on Women’s Health

Senator James Skoufis Chair of Committee on Investigations and Government Operations

DATE OF HEARING: February 13, 2019 DATE OF REPORT: April 15, 2019

TABLE OF CONTENTS

1. Introduction

2. Summary of Testimony from the February 13 Albany Hearing

3. Summary of Legislation Already Submitted

4. Comparison of Policies of the Legislature

5. Plan for Future Hearings

Appendix A. Legislation Already Submitted

Appendix B. Senate Sexual Harassment Policy

Appendix C. Assembly Sexual Harassment Policy

Appendix D. Submitted Testimony

1. INTRODUCTION

For the first time in 27 years, on Wednesday, February 13, 2019, joint public hearings of the New York State legislature were held on the subject of Sexual Harassment in the Workplace. February’s hearing was convened in response to a troubling pattern of high rates of persistent and continuing harassing behavior over the past quarter century. More currently and specifically, the hearing was an outgrowth of and response to the courageous efforts of seven former New York State legislative employees who witnessed, reported, or experienced sexual harassment during their time working in State government.

At the urging of these brave women and other tireless advocates, the goal of the hearing was to gather information that would reveal opportunities to create stronger and clearer policies and procedures that will endure in public and private sectors throughout the state. Legislative leaders hoped that the hearing might aid in the strengthening of proposed legislation and spur the development of new legislation that will make New York State a leader in workplace safety and anti-harassment law.

Legislators heard from the federal, state, and city agencies that play roles in policy development and enforcement of workplace safety. Representative experts from advocacy organizations testified about the shocking nature of harassing behaviors and recommended pathways for strengthening policy and enacting new legislation. Finally, and most powerfully, individual witnesses delivered searing testimony about their lived experiences of being subjected to sexual harassment while working in government.

It was universally found that there is a lack of reliable policy and standard reporting structures that address victims in a trauma-informed manner. Critical gaps and obstructions impede timely and complete reporting of harassing behaviors. Throughout the hearing, witnesses exposed the grossly inadequate avenues of recourse available to them and widespread institutional failure to resolve matters without subjecting them to further harm.

Clearly, one hearing on this subject after 27 years of silence, is insufficient to address the scope and stubbornness of this problem and help us to fully understand how best to refurbish policies and develop appropriate and enduring legislation that protects all workers in New York. Absent from the February hearing were key state governmental agencies such as the NYS Human Rights Division and NYS Governor’s Office of Employee Relations (GOER), that provide oversight and exist as repositories for reporting. Without the opportunity to hear from these critical agencies and evaluate how policies were developed and how complaints are fielded, an entire data set germane to making improvements in the system has not been captured.

Despite the 11-hour marathon length of February’s hearing, blue collar and service workers who were scheduled to testify were not able to. Some had insufficient childcare to remain with us into the night. As a result, their voices remain unheard. Professional white-collar governmental workers were the only individual victims of sexual harassment available to testify. We did not hear from any women or men of color. We know that when the target of harassment is both a woman and a member of a racial minority group, the risk of experiencing harassing behaviors is greatly increased beyond that if the individual belonged to only one of those groups.

Intersectionality is, in itself a risk factor for increased rates of workplace harassment. Many service workers earn minimum wage or rely on tips and have less than optimal control over their schedules, especially if they have dependent children. Taking this into account, and reflecting on the importance of hearing from as many voices across all employment sectors as possible, we recommend additional hearings within normal business hours that gives priority to these workers.

Finally, we need further testimony from those governmental leaders and agencies responsible for the laws and internal guidelines in place so we can closely examine the disparity between their intentions and the woeful outcomes. Developing policy that is rigorous enough to produce much better results requires a complete exploration. Thorough examination of past practice will enable us to determine how we have failed to achieve desired outcomes. It is not enough to have strong laws. We must also have enforcement systems that function with equal strength. We recommend hearings that provide an opportunity for leadership in Albany to address how we arrived at this dissonant moment.

We laid groundwork in February that demands additional hearings in order to have a clear survey of the landscape before we begin to build a truly strong framework as a foundation for new structures. Victims need to be heard so that oversight and enforcement bodies can develop informed policies and procedures. Our work is off to a good start, but has only begun.

2. SUMMARY OF TESTIMONY

Roberta Reardon - Commissioner, NYS Department of Labor (DOL)

Commissioner Reardon (RR) feels as though the DOL is going above and beyond what the Department is legally required to do in regard to the model policy, but when asked by Sen. Biaggi, RR could not speak to how the DOL is doing anything more than educational outreach, nor could she demonstrate how the model harassment policy goes beyond the established statutory requirements.

Upon being questioned about oversight and implementation of the model policy, she reinforced that the Department is solely focused on educating businesses and spreading awareness about the new policy. Numerous members of the legislature voiced concerns regarding the lack of enforcement in terms of compliance, including: Sen. Biaggi, Sen. Skoufis, A/M Crespo, Sen. Salazar, A/M Walker and Sen. Ramos. The common reply to the questioning regarding enforcement was that the DOL is not an enforcement agency, but RR could not pinpoint which agency is responsible for enforcement. Another common refrain of RR’s was that it is up to the legislature to set more policy if members think current standards are insufficient.

There was also a major concern of the legislators surrounding [especially] vulnerable populations, like immigrants, whose legal status remains undefined. The concern specifically is that individuals with legal statuses in question are not reporting the harassment and/or discrimination they have endured for fear of outing themselves. RR ensured that non-citizens working in NYS are protected by the same sexual harassment laws every other worker in the state is protected by, including protections related to retaliation. No extra considerations are taken by the DOL for immigrant workers, but the Department works with advocacy groups to ensure such employers and employees understand their rights and responsibilities.

Some other themes within this testimony concerned the statute of limitations (1 year through NYS DHR) for reporting harassment in the workplace and the lack of clarity when it comes to reporting such harassment. RR did not have an opinion to share about the potential insufficiency of the current 1 year statute of limitations at the state-level. Regarding the navigability of the reporting process, it is worth elevating that RR thinks the complaint process should be accessible, but not easy (see exchange with A/M Quart). RR stated this after stating earlier in her testimony that individuals, especially young people, are more empowered than ever when it comes to handling harassment and recognizing boundaries, as if to put the onus on individuals experiencing harassment, not the institutions who perpetually fail to adequately address sexual harassment and discrimination in the workplace.

Dana Sussman Dep. Commissioner of Intergovernmental Affairs & Policy, NYC Division of Human Rights (DHR)

Based on the sentiments leading into the hearing and the testimony itself, the NYC DHR is considered a national leader in establishing and implementing strong and thoughtful reform in the realm of sexual harassment and discrimination. The line of questioning coming from the members of the legislature felt less accusatory and more exploratory as to how the State can “get it right”.

The policies the DHR has implemented are much more generous from the complainant’s point of view. The city expanded the statute of limitations for reporting harassment to 3 years, the DHR does not allow non-disclosure agreements, the city now allows for attorney’s fees, the DHR requires employers of 15 or more employees to conduct annual sexual harassment training and they established an internal gender-based harassment unit to focus solely on facilitating claims of sexual harassment. Specifically, the unit is a small group of trauma-trained attorneys (currently 4-5 on staff) that work on all aspects of handling all aspects of the process for those who come forward with sexual harassment complaints. DS was not equipped with the cost data as it relates to the sexual harassment unit at the DHR.

DS brought forth specific recommendations to be implemented at the state-level, including: eliminating the severe and pervasive standard, eliminating the Faragher-Ellerth defense and including punitive damages in statute. She also encourages the State to take on broader interpretations of sexual harassment to capture the nuances of harassment that are not directly sexual in nature.

Kevin Berry - New York Dist. Director, U.S. Equal Employment Opportunity Commission (EEOC)

Overall, it seemed that Kevin Berry was not prepared to testify before the legislature. He did not have factual details to back up his responses about sexual harassment settlements being paid out by NYS employers, he could not adequately prove what the Commission is doing to combat online harassment, nor could he provide a convincing response as to the criteria the EEOC uses to determine the credibility and/or strength of a complaint in order to take on cases. This is worrisome because upon hearing of a “credibility assessment,” it makes one think that individuals enduring harassment are being put in a precarious position where they have to go above and beyond to prove what they experienced is indeed harmful to an outside entity whose purpose is to advocate for disenfranchised workers. This practice of the EEOC feels reminiscent of the widely disputed severe and pervasive standard currently being used in the court system to rule on harassment cases.

What was made clear by this testimony is how limited the EEOC is in terms of resources. KB explicitly stated that the Commission can only take on a limited number of cases annually because of the lack of resources. Though it is unclear as to whether the limited resources play a part, the Commission has work sharing agreements with the NYS and NYC DHRs in which the entities work together to connect a complainant to the entity best equipped to handle the specific

6 case. When asked how the current presidential administration impacts the work being done at the federal-level by the EEOC, KB claimed it has no bearing on the work they do. It is worth exploring at what levels the EEOC is currently being funded compared to years past to target potential shortfalls.

The Sexual Harassment Working Group

The Sexual Harassment Working Group is comprised of seven legislative staffers who faced sexual harassment, and brought allegations against lawmakers and officials, while working in the New York State Legislature.

Chloe Rivera - Legislative Aide, Office of Former Assemblyman Vito Lopez

Rivera testified about her experience being sexually harassed by Assemblyman Vito Lopez. It was her first “real job in politics” at twenty-four years old. A week after she started, Lopez who was almost seventy-one at the time began to harass her. He would pressure her to massage his hand while he drove, unwelcomely touch her, and when she rejected his advances he would question her sexuality. He objectified and humiliated Rivera by parading her around in political meetings with his male friends and colleagues who followed Lopez’s example, thus creating an “endless cycle”. She filed a complaint with the Legislative Ethics Committee and the Assembly’s Committee on Ethics and Guidance in July 2012. Lopez was stripped of committee chairmanship, his staff size was reduced, and he wasn’t allowed interns or anyone under 21 years old in his office and he did not have any seniority perks. Rivera was transferred to another office and demoted. An investigation by the Joint Commission on Public Ethics (JCOPE) in 2013 found that Lopez had harassed at least six women on his staff, before Rivera’s time. She learned that staff of elected officials are not protected under Federal Title VII sexual harassment protections after she sought redress in court.

Leah Herbert, Legislative Assistant/Chief of Staff, Office of Former Assemblyman Vito Lopez

Herbert’s experience was nearly identical to Rivera’s experience while working in Lopez’s office. When she tried to report the harassment, she was sent to the Speaker, Sheldon Silver’s, office and offered a punitive non-disclosure agreement as a condition of voluntarily resigning and receiving a settlement for damages. Herbert did not want “hush money” but it was the only option she had to avoid having her privacy invaded and being blacklisted. Rivera lost her health insurance, had no unemployment insurance, had no job prospects and could not discuss her experiences with anyone because of a liquidated damages clause. The NDA enabled Lopez to harass Rivera and Tori Kelly (former legislative aide to Lopez) during mediations and after settlements. In addition to not being able to discuss her experiences with anyone, she lost health insurance, had no unemployment insurance and no job prospects.

Rita Pasarell, Legislative Staffer, Office of Former Assemblyman Vito Lopez

During her time in the office, Lopez’s harassment became a daily occurrence. Lopez directed her and other female staffers to dress in heels and short skirts and in one case, “nothing

7 but that scarf”. Lopez also pressured workers to share hotel rooms with him. Pasarell states that, “success in Lopez’s office would be impossible without tolerating harassment.” Pasarell reported the harassment along with Herbert only to learn months later that no investigation took place, no worker protections were implemented, and that new workers were harassed.

Danielle Bennett, Scheduler and Constituent Services, Office of Assemblyman Micah Kellner

Bennett was Kellner’s most junior staffer. This was her first job out of college. Kellner made inappropriate comments in person, online and over the phone. After she told Kellner to stop, he retaliated and froze her out by cutting off all communication with her including communication that was necessary for her to do her job then tried to get his Chief of Staff (COS) to fire her. Bennett told COS of Kellner’s harassment.

She spoke to Assembly counsel, Bill Collins who told her she should tell Kellner to “stop” because maybe he was unaware his behavior was unwarranted. Collins then told her the only option would be to file a report that would be public, including her name. She also feared being blackballed and dragged by the media so she chose not to proceed. Interest in Collins triggered a separate investigation by Assembly Ethics Committee and JCOPE. Jcope subpoenaed Bennet and Assemblyman Lavine, Chair of Ethics asked her to share her experience to help the investigation. She spoke with Assembly Ethics independent counsel and then asked to sign a sworn statement that was plagued with inaccuracies and taken out of context. When she refused to sign, she was told it didn’t matter because it was going into the case file.

When the investigation concluded, it was recommended that Kellner could not have interns and that he needed to submit to a climate survey. Bennett was not an intern, so it was not relevant in preventing sexual harassment for employees. A year later, there was a second investigation. Bennett was subpoenaed by JCOPE again and was not informed about who or what was being investigated. After JCOPE received information from Bennett, they stopped communicating.

Eliyanna Kaiser, Chief of Staff, Office of Former Assemblyman Micah Kellner

Kaiser worked in the Assembly from 2003-2012. She served as Chief of Staff to Kellner from 2009 to 2012 (during the time Kellner harassed Bennett). Kaiser learned of Bennett’s sexual harassment when Kellner was verbally abusing another staff member. Kaiser was furious, but not surprised because Kellner’s prior behaviors. He told dirty jokes in the office, called a female elected a derogatory, sexist nickname, and cultivated a culture of open sexual conversation. He rewarded those who participated and laughed along by withholding verbal abuse on them. He also openly mocked Sexual Harassment and bias trainings for members and would get annoyed when staff had to attend.

Kaiser feared no one would hire her if she hurt Kellner’s’ career by reporting since it was “…the Chief of Staff’s job to protect the member and manage any scandals, not trigger them.” Kaiser decided she had an obligation to report harassment to Assembly counsel but was told only Bennett could make a report. Instead she tried to trigger an investigation by reporting Kellner’s conduct which made her uncomfortable and caused her sleepless nights. At the time, Kellner was

8 abusive to everyone except Bennett at the time. He yelled and berated staff members, threw objects, swiped desks clear of their contents and once slammed his fist into the wall next to Kaiser’s face and caused pictures to fall that left a mark which needed to be painted over. After being informed that there was no reason to fire Bennett, Kellner told Kaiser to log every time she was late, failed to quickly return calls, pass on messages, or made a scheduling error. She helped relocate Bennett to another Assemblymember’s office and was thanked by Kellner for “getting rid of” Bennett. She took a part-time job in another member’s office and after she left the New York Times reported a story on Kellner and she was the only one who commented on the record. She received calls warning her from Kellner’s government and campaign staff warning her. Tabloid writers also published hit pieces about Kaiser’s wife and the reason why Kaiser turned on him.

In the Summer of 2013, Assemblyman Lavine launched an investigation into Kellner’s conduct. She sat for an “informal interview” and later received statements that were not in her own words and had minor errors which she refused to sign and her attorney protested. JCOPE also subpoenaed her around that time and never made her aware of who or what was being investigated, or what findings or reports came from the investigation.

Kellner was admonished in writing at the end of 2013 and stripped of committee chairmanship, forbidden from having interns, and barred from hiring additional staff.

Erica Vladimer - Legislative Aide, Office of Former State Senator Jeff Klein

Vladimer was forcibly kissed by Senator Klein. Vladimer’s options were to report the Senator, pretend it never happened and continue working, find another position in a new office, or leave Albany. After seeing the reporting process play out for others, the effort to report seemed futile. So, Vladimer chose to leave Albany without reporting.

Elizabeth Crothers, Legislative Aide

Crothers was 24 years old when she was raped by former Michael Boxley, the counsel to Speaker Silver’s Chief Counsel. She reported it to Bill Collins and during her first interview she was interrupted three times by Silver. Throughout the investigation, Boxley and Silver were privy to all information and controlled it. Silver informed Crothers that his first priority was to protect the institution. As a solution, he promised that Boxley would not go to bars at night because “improprieties take place there”, even though her impropriety did not. Silver issued a statement supporting Boxley even though he said he would step back from the investigation. His support caused almost every lawmaker and staffer to support Boxley. He refused to remove himself as the final authority in the matter.

The Assembly hired a mediator who told Crothers it would be uncooperative to refuse to meet with Boxley who wanted to apologize. Boxley never apologized. She knew that no justice and fair process was coming from the Assembly, waived her right to sue and agreed to close the investigation without a finding with her only condition being that Boxley would take an HIV test. She was only allowed to view the results but not retain a copy. In 2003, a few months after Crothers left the Assembly, Boxley was arrested and led out the Capitol for raping another

9 legislative staffer. After Boxley’s arrest, Bill Collins sent a letter explain the consequences of her speaking about her experience.

Elias Farah, Legislative Director, Office of Former Assemblywoman Angela Wozniak

The Sexual Harassment Working group was also joined by Elias Farah, former Legislative Director to Assemblywoman Angela Wozniak. Farah’s testimony focused on issues that he faced when tried to report harassment by Wozniak. He didn’t know who to turn to or to trust so he told a staff member who insisted that he sign a resignation and if he didn’t, he’d make things worse for himself. He tried to hire an attorney who wanted $12,000 just to speak with him. After Farah came forward, Wozniak retaliated and attempted to damage his reputation with falsehoods. The Assembly forbade her from speaking about it, so instead she had her personal attorney speaking to the media. A PR operative ran a hit piece called “Don’t Shed a Tear for Elias Farah” which portrayed Wozniak as the victim. Two years after the ordeal, he was hired as an attorney in St. Lawrence County. It was a long way from his hometown in Buffalo but nobody wanted to hire him based on his google searches. On his second day of work, the Watertown Times had an article referring to the Times Union article about him being in a sex scandal. People laughed, joked, mocked him and his sexuality for reporting. Everywhere he goes, he can’t escape the story and it still hurts his job positions and personal relationships.

Current Issues

There is no organization to receive reports and to investigate claims of sexual harassment that is truly independent from the Legislature. Eight members of the Joint Commission on Public Ethics (JCOPE) are appointed by the legislature and the other six members are appointed by the Governor. Of the nine members on the Legislative Ethics Committee, four members are members of the legislature and the remaining five are appointed by leadership in the Legislature. The committee on Ethics and Guidance / Internal Governance that investigate reported incidences are also made up of members of the legislature. Danielle Bennett summarized that her experience reporting sexual harassment was treated as a “threat to the Assembly that must be combated”.

Staff of elected officials are not protected under federal title VII sexual harassment protections. Under State Human Rights Law, the Assembly/Senate are not employers and individual harassers are not liable for their abuse because they do not hold ownership interest or decision-making powers.

The “severe and pervasive” standard and Faragher-Ellerth defense diminishes victim’s experiences. The severe and pervasive standard subjects workers to an unjust level of harassment. The standard forces victims to “fit their trauma into a tiny frame and victims may fail at doing so because the threshold is usually beyond reach. Just because a behavior is unacceptable, does not make it sexual harassment under NYS law if the behavior does not meet the standard. The Faragher-Ellerth defense puts the burden on victims when an employer’s policy does not prevent harassment or the victim is hesitant to report.

Non-Disclosure agreements with liquidated damages intimidate victims into silence and does not shed light on the harasser’s pattern of behaviors. For example, Leah Herbert’s NDA with liquidated damage clause at $20,000 an offense, enabled Lopez to harass Chloe Rivera and Tori Kelly during mediation and after settlements. Herbert didn’t want to sign an NDA, but it was her only option to avoid an invasion of privacy by media and being blacklisted. Although new proposed laws ban NDAs unless preferred by the complainant, it also allows for coercion.

The Legislature provides counsel for members immediately. However, victims are forced to hire their own counsel which may be too costly for someone who’s an intern or staff member. As a result, when they come forward as victims they have no assistance.

Policy Recommendations

· Ban liquidated damage clauses from non-disclosure agreements · Change “Severe or Pervasive” standard and adopt the standard currently in place in New York City laws · Create a law or regulation that limits the ability of the press to release the names of victims · Create legislation that allows people to remove harmful articles from Google searches · Create a repository for discrimination and harassment agreements (Attorney General’s office) · Investigate employers that harbor serial abusers · Sunshine in litigation provision to allow victims to corroborate their experiences against serial harassers · Requires confidentiality agreements be void if it stops a party from filing an official complaint with a local, state or federal agency or disclosing facts that are necessary to receive unemployment insurance or other public benefits · Explicitly state in the New York Human Rights Law that all workers for hire are protected including clarity that public entities represented by elected officials are employers. · Designate the Department of Human Resources to be the sole state entity to investigate sexual harassment complaints.

Seth Agata, JCOPE, Executive Director Emily Logue, JCOPE, Deputy Director of Investigations

JCOPE is comprised of 14 commissioners, eight of whom are appointed by the legislature and six of whom are appointed by the commissioner. Two commissioner seats are vacant (Stewart-cousins/ Assemblyman Kolb appointees). Eight commissioners are necessary to act

Sexual Harassment Investigations

Allegations are received via a complaint, tips, and newspaper articles. A determination is made if there are sufficient facts to support a potential violation of the public officers law, section 73, section 73a, section 74 or the Hatch Act. If there is enough evidence to support a 11 violation, a 15 day letter is sent to the individual who may be violating the law with 15 days to respond. The letter lays out the evidence for the basis of the investigation/violation. Once a letter has been sent, staff must present the letter to the commissioners within 60 days. Commissioners vote to commence a formal investigation if they believe there is substantial basis that the law has been violated. If a formal investigation is commenced, staff conducts more discovery and investigations to establish a violation which then goes to a hearing.

Until 2016, all hearing were public but now the process has changed. An independent hearing officer is randomly selected, who makes findings of facts, conclusions of law and proposes penalties to be presented to the commission. The commission take a de novo review of the findings and determine whether to accept the findings of the hearing officer and issue a substantial basis investigation report. If members of the legislature are under investigation the Legislative Ethics Commission (LEC) is tasked with determining penalties. If the violator is an executive appointment the commission will issue a report. All details are kept confidential until a final report is released and published on our website.

In the past seven years, JCOPE has conducted about 43 cases involving sexual harassment. 3 resulted in settlements, 14 cases were unsubstantiated. Currently, there are 17 open investigations.

Public Officers Law, Code of Ethics it oversees  Unwarranted privileges of exemptions finable up to $10,000.  Two other areas but they do not have penalties.  Public official pursues a course of conduct which raises suspicion among the public that the public officer is violating a trust, does not have a penalty.

JCOPE has adopted the model sexual harassment policy that is enforced by an officer within the agency designated with that task.

Conflicts based on testimony ● Commissioners are selected by members of the legislature, which they may have to investigate. ● Removal of commissioners can only be done by the appointing authority and only for substantial neglect of duty, gross misconduct upon written notice and opportunity to reply ● Full relief for victims of sexual harassment cannot be given by JCOPE.

Solutions to give JCOPE teeth ● Inquest in to lost wages for offenders ● Hire victim specialists ● Increase JCOPE budget (flat for 3 years)

● Set up separate unit to handle sexual harassment cases (proposed but never passed)

Investigations

Comprised of Director of investigations, Deputy Director of Investigation and three additional investigators. Other attorney’s may be pulled from other issue areas of JCOPE IF their expertise is useful. All had lengthy careers in law enforcement in federal agencies. Sexual harassment cases are handled by the Director and Deputy Director mainly. No other training has been provided to the other members of the investigations team regarding sexual harassment matters.

Issues regarding Investigations ● No formal training nor trauma informed training for investigators regarding sexual harassment cases (potential for outside collective to formulate appropriate training) ● No timeline in place for complainants to receive milestones in the investigation Policy Recommendations ● Authorize JCOPE to address and comment on matters that are in the public arena ● Address simultaneous investigations from various entities within the legislature (JCOPE, Senate & Assembly Ethics Committees) ● Amend executive law as well as section 73 of civil rights law ● Notify complainants of their right to seek counsel Follow up ● Policy recommendation report ● Average length of time for communication with complainants and investigations next steps

Patricia Gunning - Former First Special Prosecutor and Inspector General, New York State Justice Center

Ms. Gunning is an attorney with an over 15-year career as an Assistant District Attorney in Brooklyn and later as the Chief of the Rockland County Special Victims Unit prior to her work at the Justice Center. She has over 15 years experience investigating and prosecuting sex crimes. She related a chilling tale of suffering repeated workplace harassment and abuse by the Acting Executive Director of the Justice Center. She endured persistent and escalating harassment and ultimate retaliation from her abuser. Most troubling was the fact that she, someone who had a long and experienced history leading and encouraging others who had been abused to come forward, was completely lost and ill-served by the system at every step along the way. She pointed out that while she suffered retaliation and an unsafe work environment, her accuser, after being reassigned, and ultimately fired, continued to collect a government salary.

Ms. Gunning’s recommendations were the following: ● Every complaint must be followed by a paper trail of official documentation ● Employees must have confidence that complaints will be answered in a timely manner ● Practices and procedures for reporting must be standardized and handled in a trauma- informed way ● There needs to be an independent investigatory body that will evaluate complaints and protect against retaliation

3. LEGISLATION ALREADY SUBMITTED

Appendix A below lists 29 bills that have been introduced and are awaiting action in the Legislature. These bills deal with many important specific issues, including, for example: ● Amending the State Constitution to expand those guaranteed equality of rights and ban discrimination on the basis of among others, gender, sex, pregnancy, sexual orientation, and gender identity or expression. ● Providing more time for victims to report, since there are often barriers to reporting and victims may initially be afraid to report. ● Limiting the abuse of confidentiality agreements. ● Requiring reporting confidentiality agreements to the NYS Attorney General. ● Requiring a review every four years by State agencies of model sexual harassment policies to determine if they need updating or revision to be effective. ● Eliminating certain defenses that employers have used to avoid taking responsibility for actions of their employees. ● Establishing a reporting hotline.

It’s essential to review these bills to ensure that insight gained through the hearings is used when necessary to improve them. In the listing in Appendix A, it has been noted when the Sexual Harassment Working Group has already suggested revisions.

However, there are some important issues that have not yet been addressed and additional hearings would help to lay the basis for developing appropriate legislation. For example: ● Testimony in February made clear the need to create an independent body to deal with sexual harassment in state government. This independent organization would be responsible for enforcing policies and investigating and ruling on complaints against any New York State employee. It should promulgate uniform policies, conduct trainings and gather and report on data. Employees of local governments must be similarly protected. ● Record keeping and reporting for both government and the private sector must be improved, keeping in mind appropriate confidentiality. ● Appropriate individuals should be held personally liable so they have motivation to prevent harassment and respond immediately when it happens. ● Staff who work for elected officials should be clearly defined as employees so that they are protected by all relevant laws. ● Per diem expenses should be provided for one district employee to come to Albany to avoid people being forced to share accommodations.

4. SENATE & ASSEMBLY SEXUAL HARASSMENT POLICIES COMPARED

In light of what is being learned through the hearings, the current policies of both the Assembly and the Senate for dealing with sexual harassment should be reviewed. However, a comparison of the two shows significant deficiencies in the Senate policy. The Senate policy is three pages long. The Assembly policy is 12 pages and much more detailed. Below is a comparison of key issues: ● Investigations: Assembly policy dictates hiring independent investigators. Senate policy just says the Senate will designate an investigator. ● Training: Assembly mandates training for everyone every two years. Senate has no mandated training. ● Harassment by non Legislative employees: Assembly notes harassment by vendors, constituents, lobbyists or other non employees is also unlawful. Senate does not mention. ● Location: Assembly is clear that off work site harassment is unlawful. Senate does not mention. ● Retaliation: Senate says retaliation is unlawful and will not be tolerated. Assembly details the response to retaliation and mandates developing a plan to prevent retaliation. ● Mandatory Reporters: Assembly lists who is a mandatory reporter, including Members, managers and supervisors. Senate just says any employee must report. ● Timeliness: Assembly emphasizes the importance of timely reporting. Senate does not mention. ● Reporting Harassment by Members: Senate does not address separately. Assembly describes a different method for reporting harassment by Members. ● Investigating Accused Members: Assembly has two and a half pages on dealing with accusations against Members. It says investigations of Members are conducted by independent counsel retained by the Ethics Committee, which considers the evidence and makes a determination and recommendation to the Speaker, who makes a final determination. Senate has no different process for Members and has one sentence stating that “...the legislative body may take such action as appropriate…” ● Records: Assembly mandates records be kept for seven years. Senate does not address.

Recommendations for Sexual Harassment Policy  It is recommended that the policies within both houses of the legislature mirror each other for ease of implementation and continuity of process.

5. PLAN FOR FUTURE HEARINGS.

There is a clear need for prompt action to deal with this urgent issue and for additional hearings to take place to ensure that all relevant voices are heard on the subject of sexual harassment. We must make our best effort to ensure that legislation and policies put in place now deal as effectively as possible with the issue. It is worth noting that the last time the State held hearings on the topic was 27 years ago. Holding only one hearing is not sufficient to adequately address shortfalls in how the State has dealt with sexual harassment up until now and it may undermine the current view that we are determined to treat this issue steadfastly and with rigor.

While some State agencies, along with federal and New York City agencies, did testify in the February hearing, certain key state governmental agencies, such as the NYS Human Rights Division and NYS Governor’s Office of Employee Relations (GOER), were not present at the hearing. It would also be helpful to hear testimony from the Gender-Based Anti-Harassment Unit, housed within the NYC Commission on Human Rights, which has developed durable reporting and monitoring policies for workplace harassment

While the Sexual Harassment Working Group provided critical testimony, other organizations, advocacy groups and additional individual witnesses scheduled to speak were not able to provide testimony due to the length of the hearing. In particular, testimony was not heard from service and blue-collar workers, not was testimony heard from representatives of private sector companies that have been leaders in responding to this issue. There are also a number of experts, be it in the legal or labor field, whose contributions and insights would be very valuable.

It is not convenient or possible for every interested person or organization to travel to Albany. Therefore, some hearings should be held in other areas of the State. Additional hearings, strategically positioned throughout the state, will yield the most robust data to strengthen policies and develop legislation that will make New York State a leader in the enforcement and protection of workers’ rights to a harassment-free workplace environment.

While it is important to be as thorough as possible in listening to testimony, formulating and passing legislation, it would be a serious error to suggest that once bills are passed and/or regulations are adopted that the work is done.

It is the job of the Legislature to ensure that laws are enforced and policies implemented. An integral part of effective reforms must be improved reporting and record keeping. At an appropriate time in the future, the Legislature should again hold hearings as part of its oversight role and to determine if experience shows that laws and policies need to be added to or amended to deal with unforeseen issues.

Appendix A. Legislation Already Submitted S2034 (Biaggi)/A3644 (Simotas) SHWG Position: Accept

Mandates that all state employees attend bystander intervention training for sexual harassment prevention annually.

Bystander intervention is an effective approach to sexual violence prevention that goes beyond the traditional roles of victim and harasser to empower all workers and make eliminating harassment a collective responsibility. Bystander intervention training has been successfully implemented in military and college settings and the EEOC recommends employers incorporate this technique as part of holistic policies on harassment. This proactive measure will help state employees develop the skills to intervene when harassment and discrimination occurs and foster more equitable and supportive working environments throughout the state.

S2035 (Biaggi)/A1115 (Simotas) SHWG Position: Accept

Relates to the commissioner's duty to ensure employers inform workers about certain provisions in employment contracts

To require that employers inform workers that non-disclosure or non-disparagement provisions in their employment contracts cannot prevent them from speaking with law enforcement, the equal employment opportunity commission the division of human rights or a local human rights commission. Many workers are victims or witnesses to sexual harassment believe that if they report to the police or cooperate with an investigation they could be sued for violating their nondisclosure agreements. Requiring employers to clarify the limits on non-disclosure agreements will ensure all workers are aware of their legal rights and can freely report unlawful acts without fear of retaliation. This legislation will establish an important safeguard against the misuse of non-disclosure agreements as a tool to silence whistleblowers.

S4716 (Biaggi) / No Same as SHWG Position: Accept

Includes information about bystander intervention training in the department of labor's model sexual harassment prevention policy that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when such bystanders observe problematic behaviors.

Similar to S2034, but the newer bill amends a different section of law (labor, not executive).

S2036 (Biaggi)/A1042 (Simotas)

SHWG Position: ○ Modify to clarify the statute so that attorneys are made aware that a human rights claim can be brought outside of the Court of Claims. ○ Modify so that the extension is applicable to discrimination and harassment against all protected classes.

Extends the time to file a complaint for an unlawful discriminatory practice from one year to three years; provides that the notice of intention to file pursuant to the court of claims act for any claim to recover damages for an unlawful discriminatory practice shall be filed within six months.

When an individual experiences sexual harassment or discrimination, many barriers can prevent them from immediately coming forward. Victims are not always aware of the avenues for reporting and may need time to consider their options and choose the best course of action. In addition to the practical considerations involved, it can take time for a victim to fully process their trauma and feel prepared to report the abuse. This legislation will strengthen our antidiscrimination protections by providing victims of unlawful practices with three full years to file a complaint with the New York State Division of Human Rights. Additionally, this bill would provide public employees with six months to file a notice of intention to file a claim in all cases related to harassment and discrimination. Under current law, government employees can sometimes have as little as 90 days to decide to file a claim. This inadequate window denies many workers of the opportunity to enforce their legal rights and seek the remedies they are entitled to.

S2037 (Biaggi)/A869 (Simotas)

SHWG Position: Modify to include that a party entering a confidentiality agreement has the right to consult an attorney before signing the agreement.

Relates to the provision of a waiver before the execution of a confidentiality agreement

Entering a confidential settlement agreement often involves giving up significant legal rights and it is critical that plaintiffs are not coerced into signing these agreements without fully understanding their ramifications. Requiring a signed, written waiver will ensure that any individual considering a confidentiality agreement is informed of the rights they will be surrendering and is able to assess the potential costs and benefits before making a decision. This legislation will help prevent the abuse of confidentiality agreements and allow victims to make more informed choices in settlement proceedings. Additionally, the bill would prohibit confidentiality agreements that prevent a party from filing a complaint or participating with an investigation with a state, local or federal agency, or sharing any facts necessary to receive unemployment, Medicaid or other benefits they may be entitled to.

S2049A (Biaggi)/A3643 (Simotas) SHWG Position: ○ Modify to include accountability measures for employers who do not disclose settlement agreements to the Attorney General and decrease the number of agreements that triggers an investigation to two. In addition, the AG’s office will need additional resources for this new oversight authority, and should be considered during budget negotiations. ○ Modify to include a “sunshine in litigation” provision. This provision would make the underlying facts of a nondisclosure agreement discoverable, even if a party to the agreement does not want to personally cooperative with an investigation outside of their own. Personally identifiable information would be excluded. These facts would become discoverable when the alleged harasser/discriminator is found to have discriminated against or harassed more than one individual.

Mandates the disclosure of discrimination, sexual harassment and sexual assault settlements to the civil rights bureau of the attorney general's office.

The widespread use of confidential settlements has served to conceal evidence of repeated sexual harassment and enable patterns of abuse to continue. This legislation would require all civil settlements related to allegations of discrimination, harassment and sexual assault to be disclosed to the civil rights bureau of the attorney general's office for use in identifying patterns of misconduct. The information would be maintained confidentially and trigger an investigation of any individual or institution that settles three or more claims. Allowing the attorney general to monitor settlements will strengthen the state's ability to hold serial offenders accountable and protect public safety. This bill would preserve the privacy of individual victims while ensuring confidential settlements do not shield predators who pose a continued threat to the public.

S3464 (Biaggi)/A717A (Paulin)

Requires reporting of the number of sexual harassment complaints by clients of lobbyists.

Lobbyists regularly appear before the Legislators and their staff members. Lobbyists therefore deserve the same training and protections afforded to government workers and public officials.

S3459 (Biaggi)/A3639 (Paulin)

Requires reporting of employees of colleges and universities who were found responsible through the institution's decision-making process of sexual assault, dating violence, domestic violence, stalking, or sexual harassment; requires publication of certain information.

Title IX and New York Article 129-b ensure confidentiality of the reporting individuals. Many schools have interpreted this to mean that no information about the investigation should be

20 released. Because of this, respondents of sexual violence and harassment who were found responsible through an institution's investigation process are able to remain confidential.

This act establishes an online database of employee respondents of claims of sexual violence and sexual harassment, who were found responsible through the institution's investigation process. This database will contain no identifiable information regarding the person who filed the claim. As a result, confidentiality of the reporting individual will not be breached, and the public will be informed about the results of institution investigations. Through this database, students will be better protected from any potential future incidents of sexual violence or sexual harassment.

S3453 (Biaggi)/A7084 (Paulin)

Relates to a review of the impact of the current model sexual harassment prevention guidance document and sexual harassment prevention policy.

Starting in 2022, and every four years thereafter, in conjunction with the division of human rights, the department shall evaluate the impact of the current model sexual harassment prevention guidance document and sexual harassment prevention policy and update the guidance document and prevention policy as needed.

In the light of highly visible sexual harassment scandals in the media,it is common for legislative bodies to propose legislation as an immediate response, but oftentimes legislation only provides a temporary improvement, or fixes one specific problem. This bill looks to create a sustainable and long-term solution to the problem of sexual harassment in the workplace, as it functions to regularly review and improve upon sexual harassment procedures in the legislature.

Currently, there are no systems in place to ensure established legislative workplace sexual harassment and discrimination procedures are adequate. It is in the best interest of the legislature to know whether current procedures are appropriately addressing complaints related to workplace sexual harassment. In the event that current procedures are not sufficiently addressing complaints related to sexual, steps can be taken to improve upon such processes.

S2874 (Biaggi)/A7082 (Simotas)

Relates to the crime of sexual harassment; makes such crime a class A misdemeanor. The recent investigation of abuse allegations against former Attorney General Eric Schneiderman highlighted deficits in our laws that preclude criminal charges in many cases of non-consensual, sexually-motivated violence. It is critical that the legislature acts to fix these shortcomings in order to remove barriers to justice for victims and prevent future perpetrators from evading consequences. Under current state law, the act of slapping, striking, or kicking an individual without their consent can only be charged if the perpetrator's intent was to "alarm, harass, or annoy" or there is sufficient proof that the victim suffered a physical injury. Establishing a new misdemeanor offense for acts of violence committed for the purpose of

21 sexual arousal or gratification will provide prosecutors with an important new tool to hold domestic abusers accountable for their conduct. This legislation is a crucial step towards ensuring our laws protect all victims of intimate partner violence and recognize the lasting harm these acts of abuse cause.

S517 (Krueger)/ A272 (Seawright) SHWG Position: Accept

Relates to equality of rights and protection against discrimination. This resolution proposes to amend section 11 of article 1 of the constitution. It would provide for broad equal rights and antidiscrimination protections for residents of New York State.

This amendment updates current equal protection language in the state constitution to prohibit denial of equality of rights on the basis or race, color, creed, religion, national origin, citizenship, marital status, age, gender, sex, pregnancy, sexual orientation, gender identity or expression, military status, physical or mental disability. Equality of rights is a fundamental principle of both our state and our nation, but conceptions of what equality of rights means have changed dramatically over our, history. New York States equal protection clause was adopted in 1938, prior to the civil rights movement, the women's movement, the WET movement, the disability rights movement and the many other challenges to discrimination in our state and nation. New York's constitution should reflect the evolution of concepts of equal rights and protections from discrimination that have occurred over the last eighty years. This amendment would provide for broad equality of rights by both extending protections to classes currently excluded from the constitution and by offering a more complete definition of the protections afforded under this section.

S3817 (Biaggi)/A7083 (Simotas)

Relates to increased protections for protected classes, special protections for employees who have been sexually harassed, allowing attorney fees for all protected classes, allowing punitive damages, clarifying that the employer is liable for independent contractors, and eliminates the Faragher/Ellerth defense.

Upon making the wrenching decision to come forward and seek justice for the wrongdoing they have been subject to, working individuals in the State who have experienced egregious and debilitating forms of harassment have to overcome significant and unwarranted legal barriers. One such example is the Faragher/Ellerth defense that enables an employer to avoid liability where supervisors sexually harass employees, but no "tangible employment action" follows. This and the other legal disparities surrounding discrimination in the workplace addressed in this particular bill gives workers in the State the impression that the law, as it is currently written, exists to protect institutions and employers, not its millions of vulnerable employees.

In conjunction with the newly enacted legislation coming out of the Women's Equality Agenda budget items introduced in 2018, the passage and signage of this bill will bring the State up to speed with widely accepted reforms, such as eliminating the "severe or pervasive" standard applied to sexual harassment cases and harassment based on all protected categories.

S4129 (Biaggi)/A2475 (Dinowitz)

Awards attorney's fees and expert witness fees in appropriate cases.

In order to create uniformity and consistency within the Executive Law, the limitation on the provision of attorney's fees to housing discrimination cases should he removed so that attorney's fees can be awarded in appropriate cases in other areas of the Division's jurisdiction, such as employment and places of public accommodation.

The majority of cases filed under the Executive Law are employment cases. Often, discrimination victims have been terminated, or forced to leave their jobs because of intolerable conditions such as pervasive sexual harassment, and are frequently not in a position to pay for legal representation. Although the law provides for Division attorneys or agents to present cases at a public hearing when probable cause has been found, there are no provisions for legal representation in the investigation and conciliation stages of the Division proceedings, nor are there provisions for representation for persons who pursue their claims directly in State court.

S4313-A (Biaggi)/A7374-A (Niou)

Establishes a pilot program to create a legal hotline for complainants of workplace sexual harassment to be administered by the attorney general; makes related provisions.

Nearly 75% of all sexual harassment goes unreported and those who do report often face retaliation and inadequate redress. As a result, many victims of workplace sexual harassment are unable to exercise their legal rights because they are not aware of what those rights are and/or are afraid to exercise their rights.

This bill will create a toll-free, confidential, and safe legal hotline for reporting workplace sexual harassment. This hotline will be accessible, at minimum, Monday to Friday from 9 a.m. to 5 p.m. The function of the hotline will be to refer complainants to volunteer attorneys who will help make them aware of their legal rights and advise them on the specifics of their individualized cases. This will help facilitate an easier, more streamlined reporting system.

S4311-A (Biaggi)/A7834-A (Quart)

Prohibits the use of campaign funds to pay any settlement fees for sexual harassment civil or criminal actions.

Funds are given by donors with the expectation that their contributions will be used for the candidate's election efforts and the execution of their duties, not to fund the cost of their bad conduct.

Under current election law, section 14-130, it is illegal to use funds for payment of any fines or penalties assessed against the candidate in connection with a criminal conviction or by the joint commission for public ethics. However, as the law is currently written, using campaign funds to pay settlement fees including paying out sexual harassment settlements, is legal. This practice is an abysmal breach of the public's trust that their contributions are being appropriately used to support an honest campaign.

S4845 (Skoufis)/A8075 (Niou)

Requires employers to submit an affirmative acknowledgement of implementing a sexual harassment prevention policy which meets or exceeds the minimum standards upon the completion of the employer's annual training or the training of a newly hired employee.

Employers are responsible for delivering this sexual harassment prevention training to all their employees on an annual basis.

Despite this requirement, however, a joint Senate-Assembly hearing on sexual harassment in the workplace held in February 2019, revealed that the DOL has not taken steps to ensure that employers are actually complying with this requirement. As such, mandating that the DOL require employers to certify that they are implementing an anti-sexual harassment program that meets DOL standards is an important next step to finally cracking down on the scourge of workplace sexual harassment in New York.

S1828 (Hoylman)/A630A(Rozic)

This legislation 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; it 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; and makes conforming technical changes.

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.

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.

S3343-A (Ramos)/A3646-A (Rozic)

Relates to requiring employers to provide employees notice of their sexual harassment prevention policy and sexual harassment prevention training program in writing in English and in employees' primary languages; requires the commissioner of labor to create dual language templates of model sexual harassment prevention policies and training programs.

Despite the prevalence of sexual harassment, there is no uniform requirement for employers to notify their employees of sexual harassment prevention. As victims of sexual harassment continue to step forward, it is important that we encourage reporting and shine a light on the importance of taking proactive steps to assist victims, as well as preventing future victimization.

The new regulations and templates are a step in the right direction but without ensuring that all employees are notified properly and in their primary language, meaningful change in the workplace will be hard to come by.

No Same as/A6725 (Finch)

Enacts the "Woman's Workplace Protection Act," which seeks to deter sexual harassment in the workplace and provide additional protections for employees subjected to sexual harassment in the workplace.

According to a 2008 poll conducted by Louis Harris and Associates, 31 percent of female workers stated that they had been sexually harassed at work. Of those women, 62 percent indicated that they took no action.

This bill seeks to address sexual harassment in the workplace by defining what constitutes sexual harassment and also authorizing the Division of Human Rights to seek punitive damages on behalf of victims. This will deter employers who may be engaging in, or maintain a work environment that allows, sexual harassment. It will also ensure victims may receive damages to which they are entitled. This bill also provides additional whistleblower protections, in addition to those included under existing law, for employees experiencing sexual harassment in the workplace.

S3377 (Gounardes)/A7167 (Rozic)

Prohibits sexual harassment by employers. Victims of workplace sexual harassment who come forward and report the harassment face an uphill battle. Questions still exist regarding whether all sexually harassing conduct is considered a prohibited discriminatory practice or if the sexual harassment needs to rise to a certain level before it becomes actionable under the State Human Rights Law.

It was not until sexual harassment victims courageously came out of the shadows to share their experiences and the high burden of proof that they had to reach. This legislation clarifies that in New York workplace sexual harassment will not be tolerated and lowers the standard of proof.

Once enacted, the New York State standard and the New York City standard for proving sexual harassment will be closely aligned.

Victims will be protected from unlawful discriminatory practices upon filing the complaint, regardless of the level of pervasiveness or severity of the alleged conduct.

S4512 (Krueger)/A7217 (Cruz)

SHWG Position: Modify so that anyone who reaches a settlement for violating Executive Law Section 294 or Public Officers Law Section 74 is also barred from lobbying for five years. Prohibits anyone who is convicted of, or pleads guilty to, a criminal sex offense [Article 130 of the NY Penal Code] from lobbying for compensation. It also prohibits anyone who is found guilty in a claim related to sexual harassment under Section 294 of the Executive Law, or found to have violated Public Officers Law Section 74 as a result of a sexual harassment investigation, is barred from lobbying for five years from the date of the judgment or finding.

It is critical that the legislature sends a clear message that sexual harassment and abuse will not be tolerated. Granting individuals with a history of sexual misconduct access to legislators and staff tells young employees and interns that protecting their safety and wellbeing is not a priority for the state. Allowing perpetrators of sexual violence in positions of power and influence enables a culture of abuse and hostility towards women in the workplace. Prohibiting abusers from working as lobbyists is an important step towards meaningful change on issues of sexual assault and harassment. This legislation will help prevent workplace violence and demonstrate our commitment to building safer working environments in the state government.

S4513 (Krueger)/A7220 (Cruz)

Makes it unlawful for an employer to fail to take immediate and appropriate corrective action when he or she knows of a non-employee sexually harassing certain employees.

Workers in many industries are vulnerable to sexual harassment from customers, guests and other non-employees they encounter in the course of performing their jobs. It is critical that our laws against harassment do not leave these workers behind. This legislation clarifies that an employer is responsible for taking immediate corrective action if they know or should have known of instances of sexual harassment/by non-employees. Additionally, the bill requires that employers take all reasonable steps to prevent this type of harassment from occurring. This legislation will strengthen the state's protections against sexual harassment and ensure employers are accountable for addressing all sources of harassment in the workplace.

S3745-A Kennedy/No Same as

Relates to the crime of official misconduct for sexual harassment for members of the New York state legislature; makes it a class A misdemeanor.

New Yorkers place the utmost confidence in the people they cast their ballots for, and expect them to conduct themselves with dignity and respect. Elected officials should be held to the

26 highest standards, and in the event they use their position of power to exploit and victimize their subordinates, they should be punished. This behavior is a significant betrayal of the public trust, and those who engage in these actions need to be held accountable.

The New York State Legislature has the opportunity be an example for other entities and organizations by implementing a zero tolerance policy for sexual harassment and assault, no matter the title or office of the offender.

S3746-A (Kennedy)/No Same as

Creates the crime of official misconduct for sexual harassment by a public servant; makes it a class A misdemeanor.

Public Servants should be held to the highest standards, and in the event they use their position of power to exploit and victimize their subordinates, they should be punished. This behavior is a significant betrayal of the public trust, and those who engage in these actions need to be held accountable.

The New York State has the opportunity be an example for other entities and states by implementing a zero tolerance policy for sexual harassment and assault, no matter the title or office of the offender.

S3747-A (Kennedy)/ No Same as

Prohibits officers or employees of a state agency, members of the legislature or legislative employees from committing acts of sexual harassment while serving in his or her official capacity.

Sexual harassment in the workplace has become widely publicized in recent days, and the rampant nature of harassing conduct must be taken seriously. New York can become a leader by setting a high standard for public officers in the workplace, which will help ensure that a harassment-free workplace is promoted and harassment is taken seriously. This legislation would explicitly add commission of an act of sexual harassment as a violation of the Public Officers Law Code of Conduct. Committing an act of sexual harassment would be punished by a civil fine of up to $10,000 per incident, and would trigger an ethics Investigation and determination by the Legislative Ethics Commission and/or Joint Commission on Public Ethics. By raising the bar for public officers, New York will set the highest example for expectations of good conduct at work.

S3941(Krueger)/A7485 (Rozic)

Relates to establishing sexual harassment prevention training protocols within the private sector including a model management policy and training program and how to properly disseminate information to employers and employees.

Several high profile incidents of sexual harassment in both the public and private sectors have emphasized the inadequate state remedies for employees who are victims of sexual harassment. The state's failure to properly address such discriminatory conduct fails to promote gender equality in the workplace and subjects employees to hostile conduct at work. In New York, sexual harassment is not even defined as an unlawful discriminatory conduct under the state human rights law for all employees. Many other states have adopted anti-sexual harassment provision of law to help employees experience workplace conditions free of hostile sexual conduct and help employers clearly understand what conduct shall be deemed unlawful. Basic steps to outlaw sexual harassment in the workplace and promote education about improper conduct can improve workplace conditions. This legislation provides a definition of sexual harassment and would make it easier for a victim of sexual harassment to receive redress for their experiences. By adding a state definition and strengthening legal remedies against such conduct, this legislation will help address current workplace grievances and promote harassment- free workplaces for all employees to enjoy.

S4144 (Savino)/A313 (Rozic)

Relates to establishing certain practices relating to models

Though modeling agencies in New York State are licensed with other employment agencies under general business law, it is common practice for agencies to claim that they instead serve as management companies. Using the "incidental booking exception," modeling agencies assert that the bookings they secure for models are secondary to managing models' careers. As a result, agencies have escaped licensing requirements, caps on commissions, and accountability to the models whose interests they represent. Additionally, the inconsistencies in classification as to whether models are employees or independent contractors have cultivated a workplace environment where models are not afforded clear labor protections under the law.

This bill would address loopholes in the law by making it an unlawful discriminatory practice for a modeling entity, whether it be a management agency or company, to subject a model to harassment, regardless of their status as an independent contractor or employee. This includes but is not limited to unwelcome sexual advances, requests for sexual favors, and harassment based on age, race, national origin, color, sexual orientation, sex, and disability.

S4177 (Antonacci)/A1532 (Magnarelli)

Prohibits certain confidentiality and nondisclosure provisions from inclusion in contracts entered into by the state; provides an exclusion in cases of sexual harassment when the complainant prefers confidentiality.

On December 30, 2017, the State University of New York presented one of its employees with a settlement agreement that contained the following clause: Employee agrees not to discuss, describe, comment upon, or otherwise elaborate upon the terms of this Agreement with anyone, regardless of whether any such communications are deemed to be disparaging or derogatory in nature, facts or opinions or all of the foregoing, except as may be necessary to enforce or administer the provisions of this Agreement or as required by law or in response to a legal and/or

28 administrative proceeding pursuant to a lawfully issued subpoena. No statement shall be made outside of said proceedings including, but not limited to, any elaboration and/or explanation of any testimony provided therein."

The agreement would have remained confidential had there not been a successful demand for disclosure under the Freedom of Information Law made by a reporter from the Post Standard in Central New York. In enacting the Freedom of Information Law, the Legislature found that "(t)he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality."(Pub. Off. Law § 84). This bill furthers that objective.

S5132 (Ramos)/A7139 (Rozic)

Relates to requiring employers to obtain an acknowledgement of receipt from employees of their sexual harassment prevention policy and sexual harassment prevention training program in writing in English and in employees' primary languages; requires employers to obtain acknowledgements from employees and keep such acknowledgements for six years.

Appendix

Senate

Sexual

Harassment Policy New York State Senate Policy to Prevent Discrimination and Harassment

The New York State Senate is committed to providing and maintaining a work environment for all Senate Members and employees which is free from any form of harassment or discrimination based on race, age, creed, color, religion, gender, military status, sexual orientation, familial status, national origin, predisposing genetic characteristics, or physical or mental disability, domestic violence victim status, or any other protected class by law.

Discrimination or harassment based upon any of these characteristics is a formof misconduct that undermines the integrity of the employment relationship and will not be tolerated. Accordingly, such conduct is prohibited in the work environment, as well as each and every situation that directly impacts the work environment. As such, the Senate expressly prohibits any form of employee discrimination or harassment based on race, age, creed, color, religion, gender, military status, sexual orientation, familial status, national origin, predisposing genetic characteristics, or physical or mental disability, domestic violence victim status, or any other protected class by law. Improper interference with the ability of our employees to perform their expectedjob duties will not be tolerated.

Senate Members and employees are expected to appropriately respond to and report any activity which they feel constitutes such conduct. Harassing conduct by anyone, whether in the Senate’soffices, at work assignments outside the office, or at office-sponsored social functions, may be unlawful and will not be tolerated.

This policy applies to all applicants, employees, persons involved in the operation of the New York State Senate, and prohibits unlawful or improper harassment, discrimination and retaliation whether engaged in by any Member, employee of the New York State Senate or someone not directly connected to the New York State Senate (e.g. outside vendors, consultants, etc.).

Definitions

“Sexual Harassment’ is unwelcome or unwanted sexual advances, requesting sexual favors, or any other verbal or physical conduct of a sexual nature when:

I. Submission to such conduct is made explicitly or implicitly a term or condition of the person’s employment; or 2. Submission to or rejection of such conduct by an individual is used as a basis for employment decisions that affect such individual; or 3. Such conduct has the purpose or effect of unreasonably interfering with an employee’swork performance or creating a work environment that is intimidating, hostile, offensive or coercive 10a reasonable person.

“Sexual harassment” is not limited to male-female interaction, is gender neutral and may involve individuals of the same or different gender. The following is a partial list of examples of behavior which could be considered sexual harassment and is not exhaustive: Threats or insinuations, either explicit or implicit, that an individual’srefusal to submit to, acquiesce in, or rejection of, sexual advances or sexual conduct will adversely affect his or her employment, evaluation, wages, advancement, assigned duties, benefits or any other aspect of employment or career advancement; • Favoring any applicant or employee because that person has perfonned or shown a willingness to perform sexual favors for a supervisor or manager; • Unwelcome,profane or offensivejokes, language, cpithets, advances or propositions, by any means of communication, including e-mail; • Written or verbal abuse ofa sexual nature or use of sexually degrading or sexually vulgar words to describe an individual; • Display of sexually suggestive objects, images, posters orcanoons; • Asking questions about sexual conduct or sexual relationships; • Unwelcometouching, leering, whistling, brushing against the body, pinching or suggestive, insultingor obscene gestures or comments; and • Assault or coerced sexual acts.

“Other Unlawful Harassment” is defined as discrimination or harassment on the basis of race, age, creed, color, religion, gender, military status, sexual orientation, familial status, national origin. predisposing genetic characteristics, or physical or mental disability, domestic violence victim status or any other protected class or characteristic, and is also prohibited,

Such prohibited conduct includes communicating, sharing, or displaying written or visual material or making verbal comments or engaging in any other conduct which is demeaning or derogatory to a person because of his or her race, age, creed, color, religion, gender, military status, sexual orientation, familial status, national origin, predisposing genetic characteristics, or physical or mental disability, domestic violence victim status that:

i. Has the purpose or effect of creating an intimidating, hostile or offensive work environment; ii. Has the purpose or effect of unreasonably interfering with an individual’s work performance; or iii. Otherwise adversely affects an individual’s employment opportunities.

Examples of other unlawful harassment can include, but is not limited to:

• Distributing or saying epithets, slurs,jokes, remarks or negative stereotypes that are derogatory and/or demeaning to an individual’s protected class; or • Threatening, intimidating or hostile acts; or • Displaying offensive materials in the workplace.

The use of Senate facilities, property or equipment to disseminate, duplicate or display such materials is prohibited. Also, the claim that the alleged conduct “meant no harm” or was ‘lust ajoke” is not an excuse.

No Retaliation

The New York State Senate will not permit retaliation of any kind against anyone who complains about harassment, furnishes information or participates in any manner in any investigation of a harassment complaint. Such retaliation is unlawful and will not be tolerated. Any individual found to have engaged in retaliation will be subject to disciplinary action, up to and including termination of employment. Employees who feel they are being subjected to retaliation as a result of their filinga complaint or cooperating in an investigation should immediately report such conduct to the Senate Personnel Officer.

Responsibility of Individual Employees

The New York State Senate encourages individuals who feel they are being, or have been, harassed to communicate to the offending party that such conduct is harassing and to ask that the conduct stop. However, you are not required to do so. If the individual is uncomfortable with making a direct approach to the offending party, or has done so but the offending conduct has not stopped, the individual may take the following actions to address and resolve the problem:

I. As soon as possible after the harassing conduct, go directly to his or her immediate supervisor, the immediate supervisor of the offender, the appropriate department head, or to his or her appointing authority.

2. II your complaint concerns any of the above-mentioned orncials, or the person is otherwise uncomfortable about making a report to any of these individuals, he or she may go to the Senate Personnel Officer, or the Secretary of the Senate.

Responsibility of Management and Supervisors

All employees, supervisors, department heads and appointing authorities are responsible for ensuring a harassment-free workplace, and ensuring that employees are aware of this policy on preventing harassment and discrimination.

If any employee of the Senate witnesses or is notified of violations of this policy, he or she must give immediate attention to such violation by notifying his or her supervisor, department head, appointing authority, the Senate Personnel Officer, or the Secretary of the Senate. Failure of supervisors and/or management staff to report such conduct to their respective supervisor, Senate Personnel Officer, or Secretary of the Senate, may result in disciplinary action being taken.

Investigation Procedures

The policy of the New York State Senate is to investigate all complaints promptly and to take appropriate remedial action. An investigator may be designated by the Secretary of the Senate. in consultation with the Senate Personnel Officer, to carry out such responsibility. The investigator shall ask the individual complainant to provide details such as the identity of the alleged offender, the nature, date(s) and location(s) of the harassing conduct. Thereafter, the investigator shall meet individually with the alleged offender to inform him or her of the substance of the complaint, and to allow him or her to respond. If there is a significant dispute of fact, the investigator may give each party an opportunity to identify persons who can support or corroborate his or her version of the facts. The investigator may also investigate the matter further by contacting those other individuals whom the investigator feels may have additional information regarding the issues raised in the complaint.

The matter in investigation will be handled with as much confidentiality as is possible under the circumstances, and with due regard to the rights and wishes of all parties. The investigator will report his or her invcstigntion findings to the Senate Personnel Officer, who will then review the investigation findings. Upon review, the Senate Personnel Officer will determine, if the record warrants,whether inappropriate conduct has occurred and whether disciplinary or other action should be taken in order to ensure that the offensive behavior ceases and make any appropriate recommendations to the Secretary of the Senate.

Appropriate disciplinary or other action may include an apology, direction to stop the offensive behavior, counseling, verbal warning. written warning which may be included in the offender’spersonnel file, transfer, suspension, or termination of employment. If the offender is a Senate member, the legislative body may take such action as appropriate under the Constitution, or relevant New York State Law.

The complaining employee will be notified of the written resolution by the Senate Personnel Officer when the investigation is completed, and will be encouraged to report if further incidents occur. The alleged offender shall also receive notification in writing of the resolution of the investigation, either from the Senate Personnel Officer or the Secretary of the Senate.

Reporting a false complaint is a serious act. Therefore, if, after the investigation is complete, the investigator determines that any employee has knowingly made false accusations or provided false statements during the investigation, he or she may be subject to disciplinary action, up to and including termination.

Right to Appeal

Any employee, who is a complainant or alleged offender, who is dissatisfied with the written resolution ofa complaint by the Secretary of the Senate may file a written appeal to the Counsel to the Majority within fifteen (15) days of the receipt of the written resolution from the Personnel Officer. No appeal will be entertained thereafter.

Additional Complaints

In addition to filing a complaint with the Senate. a complaint may be filed with the New York State Division of Human Rights (http:/’www.dhr.ny.gov)or the United States Equal Employment Opportunity Commission (http:Hwww.eeoc.gov/’)as provided by law. Complainants may also visit those offices personally. The Personnel Office, upon request, will assist in advising how to file a complaint. Reasonable administrative leave time may be granted to a complainant or an alleged offender, at the discretion of the Senate Personnel Officer, for purposes of filing, maintaining, or defending a complaint. Employees and Senate Members are urged to take advantage of the above internal Senate procedures prior to filing with these agencies.

For further information: Debra R. Meade Personnel Officer New York State Senate Albany, NY 12247 (518) 455-3376

Secretary of the Senate January 2,2018 Appendix C. Assembly Sexual Harassment Policy Please be advised that outside counsels have been retained to investigate any allegations of sexual harassment, discrimination, or retaliation. Complaints do not need to be in writing.

• Ifa complaint is against a Member of the Assembly, please contact Carlin Meyer at (518) 455-5252.

• Ifa complaint is against an employee of the Assembly, please contact BillWallens or Mary Roach at (518) 464-1300.

NEW YORK STATE ASSEMBLY POLICY PROHIBITING HARASSMENT, DISCRIMINATIONAND RETALIATION

STATEMENT OF POLICY

The New York State Assembly (“Assembly”) believes all persons have the right to be treated with dignity and respect and is committed to maintaining a workplace free from unlawful discrimination and harassment. The conduct prohibited by this Policy will not be tolerated, and the Assembly willtake all allegations of violations seriously.

This Policy is issued to assure covered individuals that They are protected from discrimination and harassment based on race, color, sex, national origin, creed (including religion), sexual orientation, age, disability, military status, marital status, predisposing genetic characteristics, domestic violence victim status, gender identity, gender expression, transgender status, or gender dysphoria to the fullest extent required by law or Assembly policies. The Assembly also ftlly complies with sections 296 (15) and (16) of the Executive Law, Article 23-A of the Correction Law, and section 201 -g of the Labor Law.

Anyone who feels that they have been subjected to discrimination or harassment prohibited by this Policy may report the conduct using the procedures described below. Anyone who witnesses prohibited discrimination or harassment may also report the conduct using these procedures. Members, supervisors, and management personnel are mandatory reporters and are required to report prohibited discrimination and harassment of which they become aware through complaints made to them or through firsthand knowledge.

In order to assure that violations of this Policy are promptly reported and properly addressed, this Policy also prohibits retaliation against anyone who reports violations (whether the reporter is the victim or a bystander) and anyone who provides information relevant to a complaint made under this Policy. Appropriate and proportional disciplinary sanctions will be imposed upon any Member or employee who is found to have violated this Policy, the New York State Human Rights Law, or other applicable laws. II. INDIVIDUALSCOVERED UNDER THIS POLICY

This Policy applies to and protects Members of the Assembly, all employees, student interns participating in the Assembly Intern Program (hereinafter uintersw) applicants for employment, and certain non-employees (defined as someone providing services in the Assembly workspace but not employed by the Assembly, such as a contractor, subcontractor, vendor, or consultant), regardless of whether the prohibited conduct is engaged in by a Member, supervisor, co-worker, or (in some circumstances) someone not employed by the Assembly, including, but not limited to, lobbyists, outside vendors, Members constituents, or independent contractors. This Policy covers prohibited discriminatory behavior in the workplace and in certain settings outside the workplace, such as off-premises business meetings, work-related receptions, working meals, business trips, or business-related social events.

III. DEFINITIONS OF PROHIBITED HARASSMENT AND DISCRIMINATION

A. Prohibited Discrimination

It is a violation of this Policy for covered individuals to be discriminated against because of their race, color, sex, national origin, creed (including religion), age, disability, sexual orientation, military status, marital status, predisposing genetic characteristics, status as a domestic violence victim, gender identity, gender expression, transgender status, or gender dysphoria, and the other protected classes listed in the Statement of Policy (Section I), in the terms and conditions of their employment, including hiring, firing, promotion, assignment, salary, and benefits.

B. Prohibited Harassment

Harassment on the basis of race, color, sex, national origin, creed (including religion), sexual orientation, age, disability, military status, marital status, predisposing genetic characteristics, status as a domestic violence victim, gender identity, gender expression, transgender status, or gender dysphoria (called protected classes) and the other protected classes listed in the Statement of Policy (Section I)violates this Policy.

While people may sometimes make comments or jokes without intending harm or realizing that their conduct is offensive to someone else, those actions can be unwanted and can create a level of discomfort and stress that interferes with the ability of employees to perform their duties. The law and this policy call that situation a hostile work environment. Preventing a hostile work environment requires awareness by everyone at the Assembly of the impact that these actions may have on others.

Page 2 of 21 1. Sexual Harassment

Sexual harassment is a form of sex discrimination and is unlawful under federal, state, and (where applicable) local law. Sexual harassment includes harassment on the basis of sex, sexual orientation, gender identity, gender expression, and the status of being transgender.

a. Types of Sexual Harassment

Sexual harassment can violate this Policy in twodifferent ways. It can take the form of a hostile work environment or it can be quid pro quo sexual harassment.

Hostile work environment sexual harassment is described by courts as conduct directed at Individuals based on their sex that is sufficiently severe or pervasive to interfere with their work environment, regardless of whether the person or persons intended to offend. The objectionable conduct must also be something that a reasonable person would consider to be offensive and the targeted individual herself or himself considers to be offensive and unwelcome.

Quid pm quo sexual harassment occurs when someone with power (to hire, fire, deny a promotion, reassign to significantly different responsibilities, or decide a significant change in benefits) demands a sexual favor and ties the performance of that favor to a tangible action (such as hiring, firing, promotion, or raise). Ifthe employee gives in to that demand, or the employee refuses and the person with power carries out the threat, then quid pro quo sexual harassment has occurred.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when, for example:

(1) submission to such conduct is made either explicitly or implicitly a term or condition of a person’s employment;

(2) submIssion to or rejection of such conduct by a person is used as the basis of employment decisions affecting the person; or

(3) such conduct has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile, or offensive working environment.

Sexual harassment may include a range of subtle and not-so-subtle behaviors and may involve individuals of the same or different gender.

Page 3 of2l While it Is not possible to list all circumstances that may constitute sexual harassment, a partial list of unwelcome behavior that may be considered sexual harassment includes:

• Making subtle or direct advances or propositions for sexual favors; • Using sexual language or epithets; • Making inappropriate comments about an individual’s body or dress; • Making comments about an individual’s sexual prowess or deficiencies; • Making sexual Jokes; • Engaging in flirtation and/or making sexual lnnuendos; • Leering, making “elevator eyes,” whistling, or making catcalls; • Uttering sexually suggestive insults or obscene comments; • Touching, which may include brushing against the body, squeezing, rubbing, hugging, massaging, palling or other intentional or unintential physical conduct that is sexual in nature; • Subtle or obvious pressure for unwelcome sexual activities; • Making sexual gestures; • Coercing sexual acts; • Displaying sexually revealing or derogatory pictures, posters, or cartoons; • Circulating, whether in print or in electronic form, literature, games, or communications (for example, articles, magazines, or emails) of a sexual nature; • Asking questions about sexual activities; • Suggesting or demanding sexual favors in exchange for promotions, continued employment, or promises of the same; • Physical assaults of a sexual nature (e.g., rape, sexual battery, molestation, or attempt to commit such acts, which may also constitute crimes); and • Persistently seeking non-work-related social Interaction and falling to cease such activity after the person pursued has said that they wish the pursuer to stop. (Such pursuit constitutes harassment even ifthe person initiallyagreed to engage in such social activity.)

These behaviors may constitute sexual harassment whether communicated in person or in electronic or other form, including social media sites, tweets, and the like, and whether or not anonymously. It is important to be mindful that the climate surrounding sexual harassment is constantly evolving and comments or behaviors that were previously considered acceptable may no longer be considered acceptable. Individuals should be aware of the current environment and recognize changing attitudes toward what constitutes offensive conduct In the workplace.

Page 4 of 21 b. Targets of Sexual Harassment

Sexual harassment can occur between any individuals, regardless of their sex or gender. New York law protects employees (Including paid interns), non-employees (including independent contractors), and those employed by companies contracting to provide services in the workplace. A perpetrator of sexual harassment can be a superior, a subordinate, a co worker, or anyone in the workplace including an independent contractor, contract worker, vendor, client, customer, or visitor.

2. Other Forms of Prohibited Harassment

Harassment directed at individuals based on race, national origin, creed (including religion), sex, age, disability, sexual orientation, and the other protected classes listed above may also create an unlawful hostile work environment that violates this Policy. This type of hostile work environment is created by verbal or physical conduct that denigrates (puts down or mocks) or shows hostility to or dislike of a person because of his or her protected class or the protected class of that person’s relatives, friends, or associates, and that

1. creates an intimidating, hostile, or offensive work environment; 2. unreasonably interferes with an individual’s work performance; or 3. otherwise adversely affects an individuars employment opportunities.

Harassment consistently targeted at one sex, even if the content is not sexual, may create a hostile work environment based on sex. This is called gender-based or sex-based harassment. For example, If a woman or man is subjected to repeated remarks that belittle her or him and those remarks are made because of the person’s gender, that conduct may constitute unlawful harassment based on gender — as opposed to sexual harassment. Examples of such harassment are remarks such as;

• male directors of communication are superior to females because males are TMnaturalleaders”; • women are not emotionally capable of handling certain jobs; • women’s hormones interfere with handling work matters in a professional manner; • women make better negotiators then men because they are better listeners; or • It Is risky to put women in a key position, because they are apt to take maternity leaves and time off to care for sick children.

PageS of2l Similarly, repeated comments of a racist nature or demeaning to people of another protected class violate the policy and may create an illegal hostile environment. Examples include, but are not limited to:

• Referring to individuals using racially, ethnically, or religiously offensive terms; • Displaying pictures or artifacts that are commonly understood to be threatening, such as KKKhoods or nooses or swastikas or SS bolts, in ways that are likelyto be interpreted as threats; • Gossiping or speculating about individuals’ sexuality or gender identity, or outing them to others against their will; • Knowinglyand intentionally or repeatedly refusing to refer to individuals by their preferred name or pronouns; or • Ridiculing individuals or using degrading language based on their physical, mental, or psychological abilities.

3. Prohibited Third Party Harassment

Harassment by non-employee and non-Member third parties such as lobbyists, constituents, or outside delivery staff can be a violation of the Policy. Any third party harassment should be reported to the Employee’s supervisor, who is mandated to report violations of the Policy under Section V (D). If the mailer Is not addressed to the Employee’s satisfaction, the Employee may make a complaint using the complaint process set forth in Section VI. Upon report of harassment by third parties, the Assembly will take all reasonable steps within its power to stop or prevent the continuation of this conduct.

Prohibited discrimination or harassment, whether based on sex or another protected category, is not limited to the physical workplace itself. It may occur while covered individuals are traveling for business or at Assembly- sponsored events or parties. Calls, texts, emails, and other communications by social media by covered individuals may constitute unlawful workplace discrimination or harassment, even if they occur away from the workplace premises or not during work hours.

IV. PROTECTION AGAINST RETALIATION

This Policy prohibits retaliation against an individual who, in good faith, opposes or reports harassment or discrimination that she or he reasonably believes violates this Policy, or who provides information In connection with a complaint. Retaliation will be treated with the same strict discipline with which the Assembly treats prohibited harassment or discrimination. Retaliation should be reported In the same manner as harassment and will be handled in a similar fashion.

Page 6 of 21 Upon receiving a complaint against an employee (as discussed below), the Director of Human Resources, in coordination with the Minority Director of Administration and Personnel when appropriate, shall develop a written plan to prevent retahation against the complaining party and witnesses and take reasonable steps to implement the plan. Notice of the plan will be communicated to the person making the complaint, the accused, The direct supervisor of both the complainant and the accused, and anyone with a need to know. The notice willinclude the contents of the plan, the policy against retaliation, and the serious consequences that would result from retaliation.

Upon receiving a complaint against a Member (as discussed below), the Chair of the Assembly Standing Committee on Ethics and Guidance (Ethics Committee) shall develop a written plan to prevent retaliation against the complaining party and witnesses and take reasonable steps to implement the plan. In developing such plan, the Chair shall, to the extent practicable, consult with the Members of the Committee. Notice of the plan will be communicated to the person making the complaint, the alleged harasser, the Minority Director of Administration and Personnel when appropriate, and anyone with a need to know. The notice willinclude the contents of the plan, the policy against retaliation, and the serious consequences that would result from retaliation.

V. REPORTING DISCRIMINATIONOR HARASSMENT — COMPLAINT PROCEDURE

All Members of the Assembly, supervisors, and managers have the responsibility to report all incidents of discrimination or harassment, regardless of the offenders identity or position. The Assembly encourages all employees to do the same. The Assembly’s procedures are designed to help people feel free to discuss any concerns they have about discrimination or harassment with someone in a position to do something about them. This Policy also requires that employees’ and interns’ complaints be listened to and treated respectfully. The Assembly willinvestigate all complaints of Policy violations. Ifa complaint is found to have merit, the Assembly will respond with appropriate and proportionate action.

All information will be handled with the highest degree of confidentiality possible under all circumstances, recognizing that there are circumstances where complete confidentiality may not be possible.

A. Self-Help

Sometimes a p&son engaging In offensive conduct is unaware that his or her behavior is unwelcome. The Assembly supports employees (including interns) who inform offenders, in a professional manner, that their behavior is unwelcome and request that they immediately stop. This message can be spoken or in writing. Anyone who chooses this method will have the full support of the Assembly, and retaliation by anyone receiving such a message will be treated as a violation of this Policy. Ifefforts at self-help do not work and the offending behavior continues, then the employee (including an intern) should promptly make a complaint using the procedures discussed below.

Page 7 of 21 It is not necessary to attempt self-help. An employee (including an intern) should never attempt self-help if he or she feels physically threatened or otherwise uncomfortable. In order for the appropriate authorities to be aware of harassment, discrimination, or retaliation, an employee should report as described below. An employee (including an intern) may utilize any of the following reporting mechanisms in order to apprise the Assembly of harassment, discrimination, or retaliation.

B. Reporting Policy Violations Committed by an Employee (not a Member)

Any employee or intern who believes that an employee (not a Member) is engaging in behavior that violates this Policy (whether toward the employee or someone else) may report that conduct to either (1) the Director of Human Resources at (518)455- 4001 or (2) lawyers who have been retained by the Assembly to handle these matters; contact information for members and staff Is posted both on the Assembly website as well as on the first page of this Policy.

C. Reporting Policy Violations Committed by a Member

Any employee who believes that a Member is engaging in behavior that violates this Policy (whether toward the employee or someone else) is expected to report that conduct to either (1) the Chair or Ranking Minority Member of the Assembly Standing Committee on Ethics and Guidance, who shall promptly advise the other of the existence of such complaint: or (2) Counsel to the Standing Committee on Ethics and Guidance; contact information is posted on the Assembly website for members and staff as well as on the first page of this Policy. When reporting by telephone, callers should leave a private phone number and brief message if they wish to be contacted.

D. Mandatory Reporters

AllAssembly Members, managers, and supervisors who, through complaints made to them or through firsthand knowledge, become aware of conduct that may violate this Policy regardless of whether the conduct is committed by Members or employees, must report the conduct with due speed, even if the apparent victim does not wish to make a complaint or asks that the information be kept confidential. The failure of a Member, rhanager, or supervisor to timely report a potential violation of this policy may be grounds for disciplinary action against the Member, manager, or supervisor.

E. Timeliness in Reporting

The Assembly expects employees, Interns, and Members to promptly report complaints so that it can take prompt and constructive action. Early reporting and intervention are the most effective methods of addressing Policy violations. Violations that occurred more than three years before the date of reporting will not

Page 8 ofZl be investigated, nor will evidence of those violations be considered against a current alleged offender, unless they constitute crimes or violations for which the relevant statute of limitation has not yet run, or the behavior has been continuous (even if intermittent) and at least some of it has occurred within the prior three years.

F. Form

A standard complaint form for submission of a written complaint is attached to this Policy and may also be obtained on the Assembly’s website. Individuals may use this form or report orally as set forth above.

G. Other Forums

Employees (including interns) and nan-employees who believe they have been a victim of prohibited discrimination or harassment may also seek assistance in other available forums, as outlined in Section XII on Legal Protections and External Remedies below.

VI. INVESTIGATIONS, DETERMINATIONS,AND APPEALS WHEN COMPLAINT IS AGAINST AN EMPLOYEE (NON-MEMBER)

A. Investigation

If the complaint is against an employee, the investigation shall be conducted by lawyers who have been retained by the Assembly to handle these mailers. The investigation will be completed in a timely manner after receipt of the complaint or as soon as practicable thereafter. If an investigation reasonably cannot be completed within 30 days, then the investigator shall make an interim report to the Director of Human Resources, and, when appropriate, the Minority Director of Administration and Personnel, regarding the status of the investigation and selling forth any reason for the delay. The outside lawyers will conduct an investigation, which shall be confidential to the extent reasonably possible, and will submit a confidential report to the Director of Human Resources with their findings, conclusions, and recommendations. After the witnesses have been interviewed, the outside lawyers will provide to the accused a written general summary of the evidence provided by the complaining party, which shall provide sufficient information to allow the accused employee to respond effectively but shall not reveal the identity of witnesses unless, in the discretion of the Director of Human Resources, the circumstances so warrant.

The accused employee shall have the opportunity to provide a response, either orally or in writing. The accused employee shall have no other right of access to the information gathered by the outside lawyers, except as required by law.

Page 9 of 21 Any employee (including an intern) may be required to cooperate as needed with an investigation of alleged discrimination or harassment.

B. Determination by Director of Human Resources

The Director of Human Resources will make the final determination after considering the investigation report and any other evidence brought to her or his attention. The final determination shall be made within 30 days of the Director of Human Resource& receipt of the investigation report. It shall be in writing, shall indicate whether there was a violation of the policy, and shall specify any discipline to be carried out. The finding will be placed in the file maintained by Human Resources for the person accused.

If the Director of Human Resources determines that conduct prohibited under this Policy has occurred, she or he will report that determination to the offending party’s immediate supervisor, Member, and, when appropriate, the Minority Director of Administration and Personnel, along with the recommended discipline to be imposed. The Member or supervisor shall promptly carry out the discipline and confirm to the Director of Human Resources, in writing, that she or he has done so. The confirmation will also be placed in the file maintained by Human Resources for the person accused. Discipline may include, without limitation, any or all of the following: oral warning, written waming, required attendance at additional harassment prevention training, required attendance at counseling, transfer, suspension with or without pay, discharge, and/or any other actions that the Director of Human Resources, in his or her sole discretion, determines to be appropriate under the circumstances.

C. Notice

Copies of the written determination shall be mailed, by certified mail, to the complainant at her or his last known home address and the employee against whom the complaint was made at her or his last known home address. Copies of the written determination shall be delivered personally to the Speaker, and, as appropriate, the Minority Leader of the Assembly and the Minority Director of Administration and Personnel.

D. Appeals

1. Determination of No Violation or Insufficient Evidence

If the Director of Human Resources determines that this Policy was not violated or concludes that she or he cannot make a determination because there is not enough evidence, the complainant may appeal to the Speaker, who willdesignate someone to consider the appeal. The Speaker’s designee shall be licensed to practice law in New York. The appeal must be in writing

Page 10 oflI 2.

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VII. REPORTING AND INVESTIGATIONWHEN THE COMPLAINT CONCERNS THE DISCRIMINATORYOR HARASSING ACTIONS OF A THIRD PARTY WHO IS NEITHER AN EMPLOYEE NOR A MEMBER OF THE ASSEMBLY

If the complaint concerns discrimination or harassment by a third party as listed in Section III(B) (3), the person complaining should first bring the mailer to the attention of their supervisors and ask them to attempt to cause the wrongful behavior to stop and to take such other measures as may be warranted. lithe third-party discrimination or harassment continues or the complainant is not satisfied with the result of the efforts of their supervisor, the complainant may contact the Director of Human Resources seeking additional redress. The Director of Human Resources will take such actions as are warranted and may refer the matter for investigation by the independent investigator. If the supervisor who has failed to obtain a result satisfactory to the complainant is a Member of the Assembly, the Director of Human Resources will refer the mailer to the Chair of or Counsel to the Assembly Standing Committee on Ethics and Guidance.

VIII. INVESTIGATION,ETHICS COMMITFEE’S FINDINGS, AND RECOMMENDED DISCIPLINE WHEN COMPLAINT IS AGAINST A MEMBER

A. Investigation

If a complaint is lodged against a Member of the Assembly, the Counsel to the Standing Committee on Ethics and Guidance shall assign an independent investigator from the Committee’s pre-approved roster to investigate the mailer. Barring extenuating circumstances, the investigator shall complete the investigation in a timely manner after the complaint is received by the Committee’s Counsel.

The Ethics Committee may stay or decline to stay an investigation of a matter pending legal proceedings brought by the complainant in court or before an agency such as the New York State Division of Human Rights or the Equal Employment Opportunity Commission, in which case the Ethics Committee may defer or decline to defer to the outcome of such proceedings.

The investigator will conduct an investigation, which shall be maintained confidential to the extent reasonably possible. The investigator shall within seven days of receipt of the complaint present to the Ethics Committee Chair or counsel initial findings concerning the Committee’s jurisdiction to hear the complaint and whether the complaint appears to have sufficient merit to continue the investigation. Ifthere is a reasonable basis to conclude the complaint may have merit, the outside

Page 12 of2l counsel will conduct further investigation and submit a confidential report within a reasonable time to the Ethics Committee with its factual findings and conclusions after its initialreceipt of the complaint, barring extenuating circumstances.

If an investigation cannot reasonably be completed within 30 days, then the investigator shall make an interim report to the Committee’s Counsel regarding the status of the investigation and selling forth any reason for the delay. The investigator willconduct an investigation, which shall be maintained confidential to the extent reasonably possible, and will submit a confidential report to the Ethics Committee with its findings, conclusions, and recommendations. The accused Assembly Member will have no right of access to the information gathered by the investigator, except as provided in Section VIII(B) or as required by law.

The investigator shall immediately inform the Committee through Its Chair or Counsel of any delay occasioned by lack of cooperation from a Member or witness or the counsel of either, including any failure to provide timely relevant documents in their possession. A failure to cooperate on the part of an accused or his or her counsel or staff may result in the Committee’s determination to draw a negative inference as to credibilityor guilt. The investigator shall report that (a) the evidence does not support a finding of violation, together with its reasons for that conclusion; (b) the evidence supports a finding that there was a violation and a hearing is warranted, together with its reasons for those conclusions; or (c) the investigator was unable to determine whether there was a violation and (1) further investigation or a hearing is warranted, together with Its reasons for that conclusion or (2) further investigation or a hearing is likely to be fruitless together with its reasons for that conclusion or (3) certain actions short of further investigation leading to a Speaker- imposed sanction, if accepted and carded out by the accused Member, would obviate the need for further action.

As soon as a Member learns formally or informafly of the existence of an investigation of a possible complaint against that Member by the Assembly Standing Committee on Ethics and Guidance, the Member will ensure that no workplace-related records, including electronic records that may in any way be related to the subject of the investigation, are discarded, altered, spoiled, or destroyed and will inform staff, including intems, and volunteers, to do the same. The Member willat the same time Instruct staff, interns, and volunteers that should they be contacted by anyone acting under the authority of the Ethics Committee they must fully cooperate and any failure to do so may result in disciplinary sanction. The Member will inform staff, Interns, and volunteers that, until the investigation is completed, they are not to discuss the subject(s) of the investigation except with their counsel should they choose to consult counsel. The Member will, to the maximum extent possible, ensure that the above-described records are preserved until the Committee or its counsel has communicated in writing that the records need no longer be preserved. Failure to comply with these requirements may result in the Committee’s determination to draw a negative inference as to the Member’s credibilityor guilt.

Page 13 ofZI B. Member’s Opportunity to Appear Before the Ethics Committee

The Ethics Committee shall provide an opportunity for the accused Member to appear before the Ethics Committee at a private hearing, as defined by Section 73(1) of the New York State CivilRights Law, to: 1) appear and testify under oath and/or 2) provide a written sworn statement from the accused Member for the Ethics Committee’s consideration. The Member may decline to attend or participate. Committee members may draw a negative inference as to credibility or guilt from a Member’s refusal to participate. At least 15 days prior to his or her scheduled appearance before the Ethics Committee, the Ethics Committee will provide the accused Member with a written general summary of the evidence provided by the complaining party,which shall provide sufficient information to allow the Member to respond effectively but shall not reveal the identity of witnesses unless, in the discretion of the Ethics Committee Chair, the circumstances so warrant.

If the Member chooses to appear and testify under oath, then any or all of the Ethics Committee members or Committee Counsel may, at their option, question the Member on the record. A Member may also provide a statement from his or her counsel, which may be considered by the Ethics Committee but shall not substitute for the accused Assembly Member’s swam testimony.

The private hearing is the accused Member’s sole opportunity to personally address and provide testimony to the Ethics Committee before it makes its findings and recommendation to the Speaker, if any. Proceedings of a private hearing before the Committee shall remain confidential. Breaching such confidentiality may result in disciplinary action.

C. Ethics Committee’s Findings and Recommendations to the Speaker

The Ethics Committee shall review and consider the report submitted by the Investigator, have an opportunity to question the investigator about the report, and consider the sworn testimony, if any, of the accused Member and any other evidence brought to its attention. It shall make any findings of violation of the Policy and recommendations in writing to the Speaker of the Assembly and, as appropriate, the Minority Leader. The recommended discipline, if any, may include oral censure, written admonishment or censure, removal as chair of a committee or subcommittee, required attendance at additional harassment prevention or antidiscrimination training, required attendance at counseling, periodic climate surveys (conducted by an independent consultant) of the Member’s employees to ensure that there is no repeat of the conduct, removal and prohibition of interns working in the Member’s office, ineligibility for future chair or leadership positions, freezing and/or reduction of staff allocations, and any other actions that may be appropriate. The Ethics Committee may make recommendations that serve to counsel, Inform, and educate the accused Member even if the Committee has not determined that a violation of the Policy occurred. In a case where the Committee has not determined

Page 14 ofZl a violation of the Policy occurred, the Committee may authorize the Committee Counsel to inform the complainant of such determination.

D. Confidentiality of Report

The report of the independent investigator and all Information created or obtained in the course of the investigation, together with any hearing before the Ethics Committee, shall be confidential as mandated by, and consistent with, Civil Rights Law §73(8) and as required by the Speaker under this Policy. Any breach of confidentiality may result in disciplinary action.

IX. DETERMINATIONBY THE SPEAKER AND APPEAL

A. Determination

The Speaker shall review the Ethics Committee’s findings and recommendations and make a final written determination.

The discipline imposed by the Speaker may include oral censure, written admonishment or censure, removal as chair of a committee or subcommittee, required attendance at additional sexual harassment prevention training, required attendance at counseling, periodic climate surveys (conducted by an independent consultant) of a Members employees to ensure that there is no repeat of the conduct, removal and prohibition of any Interns working in the Members office, ineligibilityfor future chair or leadership positions, freezing and/or reduction of staff allocations, and any other actions that may be appropriate under the law and circumstances.

The Speaker shall mail a copy of the determination and discipline to the Member and the complainant by certified mail. When appropriate, the Speaker shall also provide a copy of the determination to the Minority Leader of the Assembly. Any discipline imposed pursuant to this section and related findings shall be made public.

B. Appeal

If the Speaker finds that this Policy was violated, in whole or in part, the accused Member may appeal. The appeal must be in writing and delivered to the Speaker within 30 days of the mailing of the notice to the Member in accordance with Section VIII (A). Upon receipt of notice of appeal, the Speaker shall promptly appoint an independent outside appeals officer to administer the appeal. The Speaker’s designee shall be licensed to practice law in New York.

The appeals officer may receive briefs from the accused and the Ethics Committee (or their respective counsel) and hold oral argument as she or he determines, but is not empowered to take testimony or seek any additional evidence. The record to

Page 15 of2I be reviewed by the appeals officer shall be limited to that which the Speaker considered in making his or her determination.

The appeals officer shall decide the appeal by applying a deferential standard of review, which is limited to: (a) an examination of whether the Speaker’s determination was arbitrary and capricious and (b) an assessment of whether the associated discipline shocks the appeals officer’s sense of fairness. The appeals officer shall have no authority to entertain objections to the processes set forth in this Policy. The appeals officer may affirm, reject, or modify the Speaker’s determination in accordance with these standards. The appeals officer shall issue his or her determination within 30 days of submission of final briefs or oral argument, whichever is later.

X. RECORD OF COMPLAINT AND INVESTIGATION

The Assembly shall maintain for at least seven years a confidential written record of each complaint of violation of this Policy, whether the complaint was made orally or in writing, how it was investigated, and the resolution. All records with respect to an investigation, including the reports of the investigators, shall be maintained in a manner that ensures confidentiality and as mandated by CivilRights Law Section 73 (8).

Xl. TRAINING

The Assembly shall conduct regular training sessions for Members, employees, and Interns to ensure that everyone understands: the seriousness of the prohibitions contained in this Policy; how to recognize violations of this Policy and applicable iaws that prohibit discrimination, harassment, and retaliation; the available mechanisms for addressing those violations; and the critical importance and commitment of the Assembly to eliminating prohibited discrimination, harassment, and retaliation.

In accordance with the Assembly’s commitment to eradicating discrimination, harassment, and retaliation, the Assembly shall conduct annual interactive sexual harassment awareness and prevention and diversity awareness training for every Member and employee (including interns) in accordance with the provisions of this Policy. All such training shall be mandatory and failure to attend such training within three months of the date originally scheduled shall subject the Member or employee (including interns) to appropriate sanction by the Speaker.

Separate training sessions shall be conducted for Members, supervisory employees and managers (including chiefs of staff), non-supervisory employees, and Interns, with emphasis on the rights and responsibilities of the group being trained and shall include a component on workplace diversity. Each interactive training session shall last approximately two hours and shall be conducted as follows:

• New Members shall attend training within two months of taking office; • Returning Members shall attend training in small groups not exceeding 25

Page 16 of2l Members in any one class; • Supervisory employees, including managers, shall attend training in small groups not exceeding 30 supervisory employees or managers in any one class; • New non-supervisory employees shall, as part of their employment orientation, view an online training video and then shall be scheduled for an interactive training session within 30 days of hire or as soon thereafter as practicable; • Returning non-supervisory employees shall attend training in groups of adequate and appropriate size to ensure the interactive nature of the training; and • Interns shall attend training in small groups not exceeding 30 interns within 30 days of beginning the Assembly Intern Program.

The Assembly will offer a sufficient number of training sessions so that Members, employees, and interns can reschedule if necessary.

XII. LEGAL PROTECTIONS AND EXTERNAL REMEDIES

Discrimination and harassment is not only prohibited by the Assembly but is also prohibited by federal, state, and, where applicable, local law.

Aside from the internal process at the Assembly, which is outlined above, covered individuals may also choose to pursue legal remedies with the following governmental agencies.

A. New York State Division of Human Rights (DHR)

The Human Rights Law (HRL), codified as New York Executive Law, art. 15, § 290 et seq., applies to employers in New York State with regard to discrimination and harassment, and protects employees (including interns) and non-employees regardless of immigration status. A complaint alleging violation of the HRL may be filed either with the New York State Division of Human Rights (DHR) or the New York State Supreme Court.

Complaints with DHR may be filed any time within one year of the alleged discrimination or harassment. Ifan individual did not file at DHR, they can sue directly in state court under the HRL, within three years of the alleged discrimination or harassment. An individual may not file with DHR if they have already filed a HRL complaint in state court.

Complaining internally to the Assembly does not extend your time to file with 01-fRor in court. The one year or three years is counted from the date of the most recent incident of alleged discrimination or harassment.

You do not need an attorney to file a complaint with DHR, and there is no cost to file with DHR.

Page 17 ofZI DHR will investigate your complaint and determine whether there is probable cause to believe that discrimination has occurred. Probable cause cases are forwarded to a public hearing before an administrative law judge. If discrimination or harassment is found after a hearing, DHR has the power to award relief, which varies but may include requiring your employer to take action to stop the discrimination or harassment or redress the damage caused, including paying monetary damages, attorney’s fees, and civilfines.

DHR’s main office contact information is: NYS Division of Human Rights, One Fordham Plaza, Fourth Floor, Bronx, New York 10458, (718) 741-6400, www.dhr.ny.gov.

Contact DHR at (888) 392-3644 or visit www.dhr.ny.govlcomplaint for more information about filing a complaint. The website has a complaint form that can be downloaded, filled out, notarized, and mailed to DHR. The website also contains contact information for DHR’s regional offices across New York State.

B. United States Equal Employment Opportunity Commission (EEOC)

The Equal Employment Opportunity Commission (EEOC) enforces federal antidiscrimination laws, including Title VII of the Civil Rights Act of 1964 (codified as 42 U.S.C. § 2000e et seq.). An individual can file a complaint with the EEOC anytime within 300 days from the alleged discrimination or harassment. There is no cost to file a complaint with the EEOC. The EEOC will investigate the complaint, and determine whether there is reasonable cause to believe that discrimination has occurred, at which point the EEOC will issue a Right to Sue letter permitting the individual to file a complaint in federal court. However, there are certain restrictions contained in federal law that limitthe ability of the personal employees of a state or local elected official to bring an action in federaLcourt.

The EEOC does not hold hearings or award relief, but may take other action including pursuing cases in federal court on behalf of complaining parties. Federal courts may award remedies if discrimination is found to have occurred.

If an individual believes that they have been discriminated against at work, they can file a “Charge of Discrimination.” The EEOC has district, area, and field offices where complaints can be filed. Contact the EEOC by calling 1-800-6694000 (1-800-669-6620 (TrY)), visiting its website at www.eeoc.gov or emailing [email protected]. If an individual filed an administrative complaint with DHR, DHR willfile the complaint with the EEOC to preserve the right to proceed in federal court.

C. Local Protections

Many localities enforce laws protecting individuals from discrimination and harassment. An individual should contact the county, city, town, or village in which they live to find out if such a law exists. For example, employees who work in New York City may be covered by the New York City Human Rights Law and may file complaints of

Page 18 of2l discrimination or harassment with the New York City Commission on Human Rights. Contact its main office at Law Enforcement Bureau of the NYC Commission on Human Rights, 40 Rector Street, 10th Floor, New York, New York; in NYC, caN 311 or (212) 306-7450; or visit www.nyc.gov/html/cchr/html/homemome.shtml.

D. Contact Local Law Enforcement

If the harassment involves physical touching, coerced physical confinement, or coerced sex acts, the conduct may constitute a crime. An individual should contact the appropriate local law enforcement agency (e.g., sheriffs office or local police department).

XIII. DISSEMINATION

A copy of this Policy shall be included in the Employee Information Guide, distributed at all training programs, distributed at least annually to every Member, employee, and intern, made available on the internet, and otherwise be disseminated as the Speaker may direct.

CARL E. HEASTIE, SPEAKER Issued: March 12, 2019

Page 19 ofZt ______

NEWYORKSTATEASSEMBLYDISCRIMINATIONCOMPLAINTFORM

Ifyou believe that you have been subjected to sexual harassment or any other formof discrimination based on your membership in a protected class, you are encouraged to complete this form and submit to the appropriate person as set forth in the preface to the policy (http:/Iintranet.nysa.us/files/HarassmentPolicy.pdfl. You willnot be retaliated against for filing a complaint.

Ifyou are more comfortable reporting orally or in another manner, the Independent counsel hired by the Assembly willcomplete this form, provide you with a copy, and followits discrimination prevention policy by ensuring an investigation of the claims as outlined in the policy and at the end of this form.

COMPLAINANTINFORMATION

Name:

Work Address:______Work Phone:______

Job Title:______Email;______

Select Preferred Communication Method: Email Phone — In person

SUPERVISORY INFORMATION

Immediate Superviso?s Name:______Title;______

Work Phone: Work Address:______

COMPLAINTINFORMATION

1. Your complaint of Discriminationis made about:

Name:______Title:______

Work Address:______Work Phone:______

Relationship to you: Supervisor - _Subordinate _Co-Worker Other

Page 20 of 21 ______

2. Please describe what happened and how it is affecting you and your work. Please use additional sheets of paper if necessary and attach any relevant documents or evidence.

3. Date(s) discrimination occurred:

Is the discrimination continuing? FYes F No

4. Please list the name and contact information of any witnesses or individuals who may have information related to your complaini

The last question is optional, but may help the investigation.

5. Have you previously complained or provided information (oral or written) about related incidents? Ifyes, when and to whom did you complain or provide information?

Ifyou have retained legal counsel and would like us to work with them, please provide their contact information.

Signature: Date:

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In case you missed those articles, let me tell you a little about what happened to us, so you can ensure that our laws protect others from suffering the same fate — without having to go to court to enforce the rights they are afforded.

For the past 25 years, I have been employed as an attorney at DCJS. I began in 1994, after working for three years as ajudicial clerk in theAppellate Division, Third Department.I was appointedDeputy Commissionerand Counselat DCJS in 2005, and became Special Counselto the Commissioner in 2015. 1was devoted to a public service career. I loved myjob, and dedicated myself to the issues of public safety andjustice in New YorkState. I served in an executive level, appointed position throughout the administrations of five governors and seven agency commissioners.

In August 2017, I was asked to appear as a witness in an investigationthat the JO was conducting at DCJS and, of course, I did so. I testified, under oath, and told the TO’sinvestigatorsthe truth about what I knew firsthand, and what had been told to me by others.

I never heard anything fUrtherabout my testimony,or about the many months long investigationthat the JO had been conducting, until December 5, 2017. On that date, I was questioned by DCJS Commissioner Mike Green, like I was a criminal, for over two hours. He said that my testimony put him in a bad position because I knew the 10 writes repoit. He had the tape of my 10 testimony,which for some reason the IG had shared with DCJS staff and he questioned me in detail about it. Less than an hour after he questioned me about my testimony,I was terminated from my Special Counsel position.

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For some reason, DCJS was allowed to simply ignore the IG’s investigatory findings and recommendations,despite the fact that they were based on the sworn testimony of “roughly 10employees”according to the Times Union (httpsi/www.timesunion.com/locaUarticl&Abuse-found-abuser spared-12761553.php[March 19, 201X]).DCJS never took action against the three employees the IG recommendedaction against in this matter. Instead, DCJS claimed it conducted its own investigationand could not sustain the allegations against the OFS Director.

There are many problematic issues the Legislaturemay wish to address that have been brought to light in this case. First, the thct that an allegedly independent agency, the IG, is providing State employees’taped testimony— which many State employees believe to be confidential, to the very agency which is being investigated is shocking. This should literally send chills down the spine of every State worker.Because the IG is a creature of statute and only has the powers afforded by statute—and release of tapes is not one—the Legislature should consider amending Executive Law article4—Ato explicitly preclude any such release in the future.

In addition, the Legislature should consider amending the Executive Law to require release of all 10 reports. Why hasn’t the 1(3’sReport been released in this case? What is there to hide? The TimesUnion and other media outlets have explicitly reported the contents of it, and the IG released a similar Letter Report into the JO’ssexual harassment investigation into Jay Kyionaga, who, interestingly, also previously worked at DCJS.

Where is the transparency and protection of women that the Governor and his executivestaff have repeatedly called for? I note that Senator Krueger had the courage to call upon the Governor’s office to address the cover-up unearthed by the Times Union in this case immediatelyafter the situation was reported, to no avail. The Legislature should demand the release of the IG’s report.

DCJS’s actions in this case have broad impact. How can we expect the public to have trust in a State criminaljustice agency that is responsible for the administrativeoversight of the State’sDNA Databank, maintaining the State’s Sex Offender Registry,administering millions of dollars in grant firnds,and maintaining the State’s crime data, when there is a failure to follow or release an

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2 Itoh Hebertand ChIo Rivera February 13,2019

Testimony for Joint Senate and Assembly Public Hearing on Sexual Harassment in the Workplace

Vile enjoyedparadingTori and me aroundhis male friendsin variouspoliticalmeetings,and tried to

direct our behaviorto makeus appear morealluringto these strange men. ft was humiliatingto be

objectilied and used in that way; I wantedto makepositive professionalimpressionson the elected officials, lobbyists,high-poweredattorneys,majorreal estate developersand othenviseconnectedmen.

Some of these men, followingVito’sexample, Were also inappropriatetowardsme. I wasstuck in what felt like an endlesscycle olharassment.

Vito recognizedmy ambitionand genuinepussionfor the work,and tried to leverageincreased

responsibilities,pay raisesand promisesto run me for publicoffice. Duringthe fourmonths1workedfor him, at leasta dozen people—curwntand formeremployees,other electedofficialsand local leaders—

indicatedthat while workingfor Vitomay be demanding,it would bode well for the next step in my careerbecauseemployerstrusted hisjudgment for hard workers.Not knowinghe had abusedother

women,thisexternalpressuremade me feel isolatedand as if I were withoutoptions.

Once schoolwas out for summervacation,Vito hireda 14-yearold femaleintern,who was placedunder my supervision.Soon thereafter,he beganto makeinappropriatecommentsto me about the wayshe dressed,andencouragedme to dress more like her. At one point,he even offered to buy mea new wardrobe—aslongas the intern took meshoppingandchose all my new clothes.This incidentwas a turningpoint for me in the office. I felt like I was handlingtheabuse at the time,bull did not know whetherthe internwas beingsubjectedto similarcomments,or worse.It was out my concern for her that

I came forwardto file a complaintwith the Assembly.

In July 2012. alongwithTori, I reportedVito’s misconductto Office of Counselfor the Majoritywhereit was then referredto the LegislativeEthicsCommissionand the AssemblyCommitteeon Ethicsand Guidance.’In August.the Speakerstripped Vitoof his committeechairmanship,reducedthe size of his staff, barred himfrom hiring internsor anyoneunderthe age of 21 and revokedany perksaccrued based on seniority.I eventuallytransferredto anotheroffice whereI wasdemoted in responsibilities,settingme back in my careerprospects.

This shouldnot have happened.If the Speakerand theAssemblyfollowedtheirown internalrules,and Leah and Rica’scomplaintswere investigatedand referredto the Committeeon Ethicsand Guidance,this wouldnot have happened.Instead,moreconcernedwithprotectingitselfthan discipliningVito or

3 Testimony

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4 Leab Heben and Chloë Rivera Febniaq 13,2019

Testimony for Joini Senate and AssemblyPublic Hearing on Sexual Harassment In the Workplace

every futureemployeror potentialromanticpartnerthe resultsof my googlesearches.But in my case, I

didn’t ask for privacy. I asked for an investigation. I asked that mystaff be protected.[asked for time

and resourcesto recoverfromthe severeFTSDI experienced. Instead,I receivednoticein the lastdays of mediation(hatthesettlementagreementwouldcontain a confidentialityagreementput in place at the

request of Vito Lopez.’2The NDA containeda liquida(eddamagesclause thatstipulatedif I violatedthe

confidentialityclause outlinedin the agreement,I wouldbe fined$20,000dollarsper orfense.’3This a commonelementused byemployersagainstvictimsto intimidatetheminto silence,just like USA Gymnasticsusedagainst a victimagainst of LarryNnssar.’4

Early versionsof the NDA even tried to banned me fromever even applyingto the Assemblyagain,5 and the finalsettlementagreementpreventedme from speakingto anyoneabout whathad happenedor the fact that theagreementitselfexistedexcept for medicalor tax purposes.’6I could noteven legally confidein myown motherabout the traumaI had sufferedand have been silent for six years,letting my traumaeat at me,as I tried to make it throughevery day on my own in isolation.

All of these punitivemeasuresagainstvictimsthat an frequentlyincludedin NDAsare still permissible under our current laws. In fact, the new law passedin the budget last April that bans NDAsexcept froma victimspreferencewould have nat changedanythingin our situation.It ignoreshowsettlementsan negotiatedIn practice.

Victimsenter intosettlementsbecausethey feel that is their best option to collectinglost wagesand reimbursementfor costly medicaltreatment.NDAsin practiceare often a non-negotiableaspect of that settlement,and victimshope,often futilely,that it will preventthem frombeingblacklistedso they will be able to find meaningfulwork in their fieldgoing forward.

Wanemployersays “take it or we will see you in court,”often victimsfeel that they have no choice. Litigationis expensive,can take years, and withthe exceptionof assaultcases. maynot result in a favorablejuty awaai if it doesn’t meetthe New YorkState and federalarchaic thresholdof the “Severeor Pervasive”standard)7 Even worse,if the existenceof an NDAcomes to light, theemployercan simply state that the NDAwas the victims’preference,whichis what happenedin mycase.

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8 Leah Hebert and Chloë Rivera February 13,2019 Testimony for Joint Senate and Assembly Public Hearing on Sexual Harassment in the Workplace

confidcntial.sexual-harassment-scttlcmcnis; 69.801 FIn.Stat. (2018) (“Sunshine in litigation; concealment of public hazards prohibited”) See A849-MSITBD): Requires independent consideration for each confidentiality provision included in a settlementagreement. Sec A8691S2037:Requiresthatany party entering a confidentiality agreement first be given a written waiver explaining the full consequences of the agreement and the rightsthey wouldbe surrendering. Additionally, under thisbill, a confidentiality agreement would be void if it stopped a party from filing an official complaint with a local, state or federal agency,cooperating with an investigation (such as testifying, assisting, or part!cipaiing), or riling or disclosing any factsnecessaq to receive unemployment insurance or other public bcnerits.Sec also All ISIS2D3S:Requires employers to inform employees signing non-disclosure agreements that ihey retain the tight to report lo law enforcement,the equal employment opportunity commission, the division of human tightsor a local human rights commission. 24SeeA849.AIS[TBDJ: The bill also prohibits the use of liquidated damages in the event that a plaintiff in a harassment or discrimination settlement violates a non-disclosure agwemcnt. In contrast to theburdensome“severe or pervasive” standardsappliedat the federalandstate levels for hostile work environment sexual harassment, the standard applied at theNew York City level has been interpreted as significantly lower. In 2009, a New York Suite appellate court detennined that sexual harassment exists under the City Human Rights Law when an individual is “treated less well than other employeesbecauseof [1gender” and the conduct complained olconsists of more than “petty slights or trivial inconveniences.” Williams v. New York City Hous. Auth., 61 A.D3d 62, 66,78,80 (N.Y. App. Div. 2009). Under this sitindard,whether harassmentwas‘½evcre and pervasive” is aol relevant to the question of underlying liability, but is relevant in determining the scope of damages. Id. at 76. mc broader Williams standard was explicitly written into the City Human Rights Law. N.Y.C Local L. No.35, ê2(c), available at hitpri/wwwl.nyc.govlasse(skchr!downloadslpdIlaniendmentslLocalLaw35.pdf (“the provisions of this title shall be construed libenlly...Cases that have correctly understood and analyzed the liberal construction requirement of subdivision a oithis section and that have developed legal doctrines accordingly that reflect the broad and remedial purposes of this tide include Albunin v. City of New York, 16 N.Y,3d 472 (2011), Bennett v. Health Management Systems. Inc., 92 A.03d 29(1st Dep’t 2011), and the majority opinion in Williams v. New York City Housing Authority. 6! A.D.3d 62(1st Dep’t 2009).”) 26 By amending the New York State Human Rights Law and modeling it after New York City Human Rights Law, supervisors, managers and employees may all be held individually liable. See also Caycmittes v, City of N.Y. Dep’t of Hous. Pius. & Dcv., Ml F. Appx. 60,62 d Cir. 2016). Individual defendants such as supervisors and co workers therefore may not be held personally liable under federal law. Tomka v. Seiler Corp., 66 FM 1295, 13l3 (2d Cir. 1995).For additional explanation of how the City Human Rights Law is broader than state and federal standards, see Malena v. Victoria’s Secret Direct, LLC, 886 F.Supp.2d 349, 366 (S.D.N.Y 2012). See also New York City Commission on Human Rights, Combating Sexual Harassment in the Workplace: Trends and Recommendations Based on 2017 Public HearingTestimony (2018). “Several states currently permit victims to sue their individual harasses under state anti-discrimination laws. In the District of Columbia, Massachusetts, Michigan, Missouri, Montana, New Mexico, and Washington. a harasser who is a supervisor can be held individually liable for sexual harassment. In California, Iowa, and Vermont, any employee can be held individually liable for harassing another employee, regardless orwhether the harassed employee is a subordinate or a coworker.” Maya Raghu and Joanna Suriani, National Women’sLaw Center, “#MeTooWhatNcxt: Strengthening Workplace Sexual Harassment Pcowctionsand Accountability” (December 2017) pages 3-4; footnotes 30-39, available at https:llnwlc.orglrcsourccslmetoowhatnext-sttengthening-workplace.scxual-hnrassment-proteetions-and aecoutuabilityl. 27 Update the dertniuon of “employee” under New York State Human Rights Law (NYSHRL) and other necessary laws, minoring the definition round in New York State Labor Law to clwiry that all workers are defined as “someone far hire” and are entitled to protections against gender-based and all other forms of protected-class discrimination. This should include staff of elected officials and those excluded from prolectiotm under the federal Title VII ‘penonal staff’ exemptlon.New York State Labor Law S. 2(5) states: “employee” means a mechanic, warkingman or laborer working for another for hire.

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at Rita Fasareli Erica Viadimer Testimony for New York State Legislature: Joint Hearing on Sexual Harassment February 13. 2019

Goad morning and thank you Senators Skoufis, Blaggi and Salazar, and Assembly members Titus, Crespo, and Walker for taking the lime to listen to workers today.

Rita: I’mRita Pasarell, a co-founder or the SexUal Harassment Working Group. Iwas Deputy Chief of Staff and LegislativeCounsel forformer New YorkState Assembly Member VitoLopez.

Erlca: I’mErica Viadimer,also a co-founder or the Sexual Harassment Working Group. Iworked as an Education PolIcyAnalyst and Counsel fortanner Senator Jeff Klein,and the IOC.

Rita: We ask that as you listen, you listen as lawmakers for the New Yorkworkforce, and not solely as our former employers. It is our hope that today’s teslimonies willguide the legislature in better understanding what protections are needed for aNworkers. Two of the most lmpactful changes that the legislature can make are to change the New YorkState severe or pervasive” standard and the Faragher Ellerth defense. This standard and affirmativedefense permit a high level of worker abuse to continue acro5s allwork industries.

Erica: We’ve been thinkingabout framing a lot lately. Framing is important because it tailors the perspective. For Instance- we can frame this hearing as a chance for victims to speak (heir truth, to be Included in and at the center of the conversation about workplace safety. We can also frame it as a chance for elected officialsto listen, to signal to victims they’rewillingto sit In the discomfortwith us. We can frame harassment and assault in two differentways as well. One way Is the simple fact of what happened:

Rita: VitoLopez told me that WIwanted to be good at my Job, I had to wear high heels and miniskirts.

Erica: I received an unwanted kiss by Senator klein.

Or the facts can be framed based on their context, and the power imbalance that affects workers and their employers:

Rita: A powerfulelected officialused his hiringpower to treat his professional female staff as dolls to dress up

Erica: A hIgh-powered elected officialforced his tongue into my mouth. FramIng our experiences as mere facts diminishes what we went through.

The New YorkState standard for hostile work environment sexual harassment takes the former approach- framingJust the facts. In order for harassment to be considered unlawful,the conduct Rita

must Erica office: frame, “wear rooms female Rita: grabbed Impossible

under there Erica: be pieces.1 Faragher.ElIerth defense harassment second workplace.2 should harassment. heard Rita: to Thinking protect people. phone calls report said the to reassignment 2Select unreasonably & otherwise.’ individuals https:llwww.eeoc.govleeocñask_Iorc&harassmentireportcfm. harassment

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I. Recommendation #1: Pass the Anti-Sexual Harassment and Anti-Discrimination Measures Proposed in in the Fl’ 2020 Executive Budget

Buildingoff of New York State’s six new anti-sexualharassment laws passedas part of the

Fiscal Year (FY) 2019 budget: Governor Cuomo included four key anti-harassmentand assault

measures in his proposed Ft 2020 Executive Budget including I) that all non-disclosure agreements

make explicit that (he complainant may still file a complaint with a state or local enforcingagency and

participate in governmentalinvestigations;2) the Departmentof Labor and Divisionof Human Rights

must create and distribute a sexual harassmentprevention poster that all employers must post;’3) the elimination of the limiting “severe or pervasive” standard for all forms of harassmentto a standard that includes actions wherein employees are “being treated not as velt as others becauseof a protected characteristic”; and 4) the elimination of the Statute of Limitationsfor rape in the 2—and3d degree.

We encourage the Legislatuk to adopt these measures in their one-house budgetsand pass them swiftly into law.

We also implore the Legislature to pass the other anti-discriminationmeasures included in the

FY 2020 Executive Budget,including I) the expansionof the Human Rights Law to include lactation

See FY 2019 New York Stale HealthandMenialHygieneArticleVIILegislation. S7507-OA95o7-C,ThittKK, httpsJ/www.nysenacc.govflcgislationlbfllsi2ol7la95o7?inicm=support.See also A Better B±nce, Fact Sheet: New York Stale Leg(stationCombalting&uzal Harassment ii’ she Workplace(Apr.2018). httpsilwww.abcitertmlance.orglwsoutt&ncwyurtsexualhanssmcnti. See Fl’ 2020 New York State Executive Budget, Education,Labor DndFamily Assistance Article VII Legislation, Pan V. httprilwww.budget.ny.govipubsiarehivdfy2Wexeciartvliklla.artvii.pdi(heivinafierFY.2020Education, Labor and Family AssisiancaE’cecutivcBudget Legislationi. ‘Id. FY2020 NewYorkSlateExecutiveBudget.PublicProtectionmid Geneml Government Article VII Legislation, PanT, hltps:llwww.budgcl.ny.govlpubsimthlvc/Iy20icxxknviiippgg-anvii-ms.pdf.

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As Luisa’s story shows, workers often face multiple, intersectedforms of discrimination. For instance, sexual harassmentcan often be accompaniedby race discrimination,or as we saw in Luisa’s case, pregnancydiscrimination.

The State should also remove four additional procedural barriers in the Human Rights Law by amendingit to: I) allow for the recoveryof punitivedamages for violationsof the law; 2) makeclear that employerswill be vicariouslyliable for the actions of supervisorsand while employersshould certainly take steps to prevent harassment,such steps will not allow the employer to avoid liability

(though may help reduce the employer’sdamages); 3) include those who employ independent contractors; and 4) allowing for the recoveryof reasonableattorney’s fees in all employment discrimination cases, not only sex discriminationcases.

3. RecommendatIon #3: Add Enforcement and Reporting Requirements to the New Employer Training Law

As of 2018, all employers in New York State are required to have a sexual harassment prevention policy and to conduct annualanti-sexual harassmenttrainings.”While this was a crucial step forward, the law should be expanded in two keys ways. First, it should make clear that conducting the state-mandatedtraining does not allow employers to avoid liability should sexual harassmentoccur in the workplace.

Second, the law should be amended to require all employers to report that they conducted the trainings and to face civil penalties if they do not do so. Under one of the new State laws, state

.N.Y.Lab.Law §201-0. 7 contractors

sexual state sexual

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5. Recommendation #5: Enact Policiesthat are Responsive to the Needs of Specific Industries, Particularly Low-Wage Industries

While the Legislatureshould work to create broad change spanning all Industries,it is also important that (he Legislature enact policies that are responsiveto the needs of particularindustries. In a survey conducted in Chicago. Unite Here Local I found that forty-nine percentof housekeepers surveyed have had guest(s) expose themselves, flash them, or answer the door naked.”Nearly two- thirds of those surveyed who worked in casinos reported that a patron had groped, pinched, or grabbed them.”Recognizingthe severity of the issue, in October2017, the Chicago City Council passed an ordinance requiring hotel employers to provide a “panic button” to any worker who works alone in moms without other employees present.”

As part of the law, employers mustalso maintain policies that encourage workersto report sexual harassment,make reporting proceduresclear, and allow workers to immediatelystop working in dangerous settings, to be re-assignedto a different work area, and to lake paid Limeoff to sign a complaint against the offending party or testify as a witness in a legal proceedingagainst the offending party.”The law also has strong anti-retaliationprotections, prohibitingemployers from retaliating against any employeethat uses the panic button, files a complaint, or lakes time off to pursue legal action against the offending guest.”

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be undone and saw through the fog of my bad eyesight, him advancing towards me. He pinned me down on the mattress

and Ifroze, feeling completely alone and terrified. Isobbed hysterically as he raped me. Afterwards, he said he couldn’t

understand why Iwas so upset telling me that I’ddone a great job and was a strong contender to win the role.

• • Iwas altered, my world completely shattered. Fear and distrust of life itself became embedded Into my very soul.

• . I blamed myself for what he had done to me, thinking that

it was my fault. Itold my 3 best friends and no else.

• • For years, I repressed the experience, but it had

undeniable effects on my career and personal life. Istopped

dancing without realizing it. Ifell apart in auditions, but I

couldn’t figure out why. Ididn’t believe in myself. For a long

period of time1 I never gave up on my dream of being an

actress, but Icould only half-heartedly pursue it. I was so afraid. Years of training and effort were undermined by this one event.

• • I ultimately continued on in the entertainment industry as a casting director, finding safety and purpose behind my desk.

• • In 2013 Icame across an article about an Oscar-winning songwriter and director who had killed himself while awaiting trial for raping young actresses at phony auditions

in New YorkCity. Likea black and white photo developing, I began to see the similarities between the man’s methods

and those of the man who had raped me. When Isaw his photo a violent physical reaction coursed through my

body—40 years later, I knew, Ijust knew Iwas looking at the face of my rapist.

• . After learning who he really was, a serial predator, Iwas released from my self-imposed prison of shame—I finally •

and speak also realized eventually to estate that rightful discovered

that chronicling me to name ultimately such reaching After criminal I

frightened of whatever anonymity

spirit. crime, any know fields entertainment •

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to Page1 of 3

Testimony of Susan L.Harper, Esq. Chair, Women in Law Section, New York State Bar Association Joint Senate &Assembly Public Hearing on Sexual Harassment in the Workplace Wednesday, February 13, 2019

Goodmorning.

Thank you very much for allowingme to address you today. Iam the Chairof the NewYorkState BarAssociation’sWomen in LawSection. Our section’smIssionis to advance women in the legal profession and all women under the law.We achieve this through many different means, including education, programming, advocacyand by legislationand policyreview.

BeforeI begin,Iwant to thankyou very foryour continued leadership and legislativeeffbrts to raise awareness through this hearing on workplace sexual harassment

Mostofyou here today are well aware that sexual harassment is a huge problem in American society. It is important to talk about just how pervasIve it is:

Arecent survey from a group called Stop Street Harassment found that 81 percent ofwomen and 43 percent of men had experienced some form ofsexual harassment during their lifetimes.

ThIrty-eight percent of these women — nearly four out of 10--said they experienced sexual harassment at the workplace.

Other research indicates that workplace sexual harassment and assault Ismost prevalent In accommodation,foodservice and restaurants, retail trade, health care, nanutcturing, and administratIve support positions.

Three-quarters ofall women working in jobs where they rely on tips for wages report tolerating inappropriate behavior. EIghtypercent of those working in restaurants — both women and men — have experienced harassment from co-workers, includingmanagers or customers,

These statistics are troubling. It is difficultenough in this world to fly to get by on lower wages, but to have to endure sexual harassment as part ofyour ‘silent job description is truly unjust

Last month at the NewYorkState BarAssociation’sAnnual Meeting.I participated in a panel on sexual harassment organized by our president MichaelMiller,who has been an outstanding champion of these issues.

Mr.Millerasked me and other panelists to consider why sexual harassment remains so prevalent In oursociety, despite widespread laws and policies aimed at preventing it

Whilesome of these laws and policies have been in plate for manyyears, others are relatively new. Myfellow panelists and I agreed that they are essential, but that they alone are not enough.The ir greater challenge is thinking boldly and Innovativelyto continue changingthe culture.

But how do we do that? There is no simple answer but evaluating risks fctors and focusingon accountability is certainly a part of it Some workplaces certain workplaces, One

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I model is harassed in the workplace, to whom can she turn? The agency, who will blame the client for the unsafe workplace? The client,who will say they have no contractual relationship with the model? For models and other independent contractors in this type of triangular relationship, there is still no clear remedy.

Moreover,most modelingagencies assert that they are not regulated by NewYorkState laws governing employment agencies,which would subject them to the necessary licensingand regulation. Eventhough the primary purpose ofmodeling agencies Is to obtain employment for their models, they claimsuch activities are “incidental”to the general career guidance they provide as “management companies”—andtherefore are not subject to the state’s regulation. I believe this Isan Issue that should be examined by the NewYorkState Department of Labor.

Almost two years ago, I brought these concerns to AssemblywomanNily Rozic.I had done a research project with the legal clinicat Fordham Law Schoolon the working conditions of models, and when it came to sexual harassment1the law professors said they were all mortified by what they found,and surprised by the limited scope of the law.

The ModelAlliancehas since worked with AssemblywomanRozicto introduce the Models’Harassment Protection Act Ifenacted, it would extend certain protection to models1putting designers, photographers and retailers (among others) on notice that they would be liable for abuses experienced on their watch. The bill would amend the current law to explicitlyinclude models, explicitlyforbid sexual advances and commentary or other forms of discrimination linked to their employment,and would require clients to provide models upon booking with a contact and avenue for filingany complaints.

Modelsin NewYorkState need specificprovisions because of their convoluted employment chain. Modelingagencies in NewYorkargue that models are independent contractors, not employees.The agencies also claim to act merely in an advisory capacity by claimingthat their role of bookingjobs for the models they represent is incidental to their primary role of providing advice.When a client books a model through an agency,the model has no direct contract describing the scope of her work for the client including until Models modeling There related minimum, sue complaints clients. imperative hold gaps environment the workplace than Harassment New

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not Culture ofComoliance:The Final Triumph of Form Over Substance in Sexual HarassmentLaw,

26 Harv. Women’s Li. 3, 49—64(2003).

NELA NY’sproposed legislationwould make employers responsible for harassment

committed by their supervisory employees,even where the victim complains too late, to the

wrong person, or is afraid to complainat all.

PUNITIVEDAMAGESARE NECESSARY TO CHANGE EMPLOYER BEHAVIOR

Finally, unlike federal law and New York City law, the New York State Human Rights Law does not allow punitive damages to be awarded against employers.This means that even where employees successfullyprove their cases, the amount of damages awarded is often so low that employersmay choose to accept the damages as a cost of doing business, as opposed to

terminatingpopular harassers or changingworkplace culture.

The lack of availabilityof punitive damagesespecially affects workplacesemploying low- wage workers. The damages a plaintiff may claim in a hostile work environmentcase under the

New York State Human Rights Law in court are limited to economic loss and compensatory damages for emotionaldistress — and attorney fees if the hostile work environment is based on sex. N.Y. Exec. Law §297(4), §297(9). §291(l0)(2019). In many cases of sexual harassment, there is no economic loss at all -- the plaintiff5implysuffers and eventually quits, with or without a newjob on the horizon. Or the economic loss is limited because the plaintiff is a low wage worker, so the amount of back pay damage the employer is forced to pay after terminating her is minimal, fromthe employer’s point of view.

Damages for emotional distress awarded byjuries and the State Division of Human Rights are

7 bottom frequently

reduced Human Order httpsi/dhr.ny.gov/sites/delaulUfiles/pdf/Commissioners

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to • Eliminatethe Faragher/Ellerthdefense. This affirmativedefense enables an employer to avoid liability where supervisorssexually harass employees but no “langible employmentaction” follows. It also allows for many cases of co-workersexual harassmentto go unremedied.In the

20 years since it was first recognized,this defense has establishedbarriers to the successful pursuit of harassmentclaims, while spawning a cottage industryof perfunctory ineffectivesexual harassment training for employees to aid in the proof of this affirmative defense.

• Allow attorney’s lees for all protectedcategories, notjust victimsof gender discrimination.

This will allow employees who might otherwise not be able to afford counsel to prosecutetheir cases with the help of “private attorney generals.”

• Allow punitive damages.NELMNY believes that the potential of punitive damage awards will be an importantdeterrent to employer misconduct.

• Protect independentcontractors from all forms of workplace discrimination,notjust sexual harassment.

• Establishthat “a motivating factor” is the standard for proving all claims under the NYSHRL.

Higherstandards of causation have been significantbarriers to successful prosecutionof these claims.

• Clarify that the employer is liable for the conduct of its independentcontractors.

The proposedamendments are as follows:

§292(5): Covers employerswith four or more employees for aJl forms of discrimination;and employerswith one or more employees for discriminatoryharassment

Text: 5. The term “employer”does not includeany employer with fewer than four employees or independentcontractors pcrsons in his or her employ except as set forth in section two hundred ninety-six-bof this article, provided, however, that in the case of an action for discrimination based on sex pursuantto subdivision one of section two hundred ninety-six of this article, with respect to sexual discriminatoryharassment enly, the term “employer”shall includeall employerswithin the state.

2 Text:

disparate 35. §292(35):

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or Text: 5 hostile submission section contractor’s employment §296(1-0: relevant stews, or decisions 2. satisfy domestic Text: considered punitive unreasonably hostile, organEzation by by exercised unreasonably physical the employment made §296-b.

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employer or

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amount

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than

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employer,

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origin, agents, is

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is §296-il: Addressescircumstancesunder which employersare liable to non-employeesin the workplace,and extends liability for all forms of unlawful discriminatoryconduct.

Text: §296-il. Unlawful dIscriminatory practices Sexual hnrtsmcnt relating to non-employees.

It shall be an unlawfuldiscriminatorypractice for an employer to permitunlawfuldiscrimination against cegual hamzmcnt of non-employeesin its workplace.An employer may be held liableto a non-employeewho is a contractor,subcontractor,vendor, consultant or other personproviding services pursuant to a contract in the workplaceor who is an employee of such contractor, subcontractor,vendor, consultant or other person providingservices pursuant to a contract in the workplace,with respect to an unlawful discriminatoryoractice sexual hamszmcnt,when the employer, its agents or supervisorsknew or should have known that such non-employeewas subjectedto an unlawful discriminatorycractice cxual haruscmcntin the employer’sworkplace, and the employer failed to take immediateand appropriate correctiveaction. In reviewingsuch cases involvingnon-employees,the extent of the employer’s control and any other legal responsibilitywhich the employer may have with respect to the conductof the harasser person who eneaaed in the unlawful discriminatorypractice shall be considered,

§297(4Hc)(iv):Extendspunitive damages to employment discriminationactions, without limitationon the amount to eases brought beforethe State Division of HumanRights.

Text: iv) awarding of punitive damages, in cases of employment discriminationto the person agarieved by such practice,and, in cases of housing discrimination0*15’,with damages in housing discriminationcases in an amount not to exceed ten thousand dollars;

§297(9): Provides for punitive damages.

Text: Any personclaimingto be aggrieved by an unlawrul discriminatorypracticeshall have a cause of action in any court of appropriatejurisdiction for damages, including, in cases of hou5ing dierimination only, punitive damages,and such other remedies as may be appropriate,including any civil fines and penalties provided in subdivision four of this section

§297(10): Provides for attorneys’ fees to prevailing plaintiffs in all employment discrimination cases, notjust those based on sex discrimination.

Text: With respect to all cases orhousingdiscrimination and housing related credit discrimination in an action or proceeding at low under this section or section two hundred ninety-eightof this article, the commissioneror the court may in its discretion award reasonableattorney’s fees to any prevailing or substantiallyprevailing party; and with respect to a claim of credit discriminationwhere sex is the basis of such discrimination,and with resr,ectto a claim in all cases of employmentdiscrimination in an action or proceedingunder this section or section two hundred ninety-eightof this article1the commissioner or the court may in ftcdiscretionjjfl

6 award

was however, fees §300: held The the Text: construed

purposes order with be Exceptions relating article, civil unlawful while

institutes

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commissioner

frivolous; must

provisions

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this NELA/NY AOVOCATE5FOR EMPLOYEERIGHTS NATOUL EIflWOfl IAYtRi flooIrc,I

SUPPLEMENT TO NELMNY SUMMARY OF AMENDMENTS TO THE NEW YORK STATE HUMAN RIGHTS LAW (NYSHRL)

February 5, 2019

The Human Rights Law was passedto provide equal employment opportunity in the workplace.Section 291(1) specificallystates: “The opportunityto obtain employmentwithout discriminationbecauseof age, race, creed, color, nationalorigin, sexual orientation, military status, sex, marital status, or disability, is hereby recognizedas and declared to be a civil dghL”

As an organizationwhose attorneysrepresent employees in employment matters, NELAJNYhas identifiedportions of the statute that need amendmentto ensure that the right to equal employmentopportunity is available to all employees and that the right is actually enforceable in practice, notjust on paper.

THE PROPOSED AMENDMENTS ARE AS FOLLOWS:

SUBJECT: PROTECTION FROM DISCRIMINATORY HARASSMENT FOR ALL EMPLOYEES — PROPOSED lULL AMENDS EXISTING §292(5):

PROPOSED AMENDMENT TO TEXT: §292(5): The term“employer” doesnot includeany employer with fewerthan four emolovees or independentcontractors peron5 in his or her employ except as set forth in section two hundred ninety-six-bof this article, provided, however, that in the case of an action for discrimination based on CCKpursuantto subdivisionone of section two hundred ninety-six of this article, with respectto sexual discriminatoryharassmentonly, the term “employer”shall include all employers within the state.

RATIONALE: This amendment firstestablishes that for purposesof counting individualpersons to determine whether the employer has four employees, and is thereby prohibited from engaging in

1 shall

This employment discriminatory jurors. SUBJECT: kinds amendment While harassment was CLAIMS disparate PROPOSED 35. DISCRIMINATION a RATIONALE: NELNNY court To

The remedial cover can acceptable taken protected NELA/NY Act. in proof them 2

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