Defines "victim of domestic violence"; prohibits employers from discriminating against victims of domestic violence.
BILL NUMBER:S3385 REVISED 5/29/13
TITLE OF BILL: An act to amend the executive law, in relation to prohibiting employers from discriminating against victims of domestic violence; and to repeal certain provisions of such law relating thereto
PURPOSE OF BILL: This bill would prohibit discrimination against victims of domestic violence in employment and provide a limited reasonable accommodation provision.
SUMMARY OF PROVISIONS OF BILL:
Section 1 of the bill would amend Executive Law § 292 by revising its subdivision 34 to define the term "victim of domestic violence" as provided in SSL § 459-a.
Section 2 makes a technical change to subdivision 1 of Section 296 of the Executive Law to confirm the prohibition of discrimination in employment against victims of domestic violence in conformity with the new definition in Section 292 of the Executive Law.
Section 3 of the bill would amend Executive Law § 296 by adding a new subdivision 20 to: (1) prohibit discrimination in employment on the basis of an employee's status as a victim of domestic violence; (2) require an employer, unless it would be an undue hardship, to provide a reasonable accommodation to a victim of domestic violence, limited solely to allowing an absence, charged to leave or unpaid, for certain activities set forth in the subdivision; and (3) require an employee who must be absent from work pursuant to this section to provide reasonable advance notice, except where such notice is not feasible.
Section 4 of the bill would provide that it will become effective 90 days after enactment.
EXISTING LAW: Executive Law § 292 defines terms used in the Human Rights Law.
Executive Law § 296 sets forth unlawful discriminatory practices in employment, housing, places of public accommodation, and other areas,
JUSTIFICATION: This legislation was vetoed by the Governor in 2010. The Governor preferred that we use a more commonly used definition of domestic violence, such as one used in the Social Services Law (SSL) This measure addresses this concern raised in the Veto message 6759 of 2010 by cross-referencing the long standing and commonly understood definition of victim of domestic violence as provided in SSL § 459-a.
Domestic violence is a crime of enormous magnitude that affects all New Yorkers-regardless of age, race, or economic status-with long term and pervasive consequences for victims, families, communities and society.
Each year, an estimated 400,000 domestic violence incidents are reported to law enforcement in New York, and approximately 300,000 calls are received by hotlines throughout the State. Nearly 165,000
orders of protection were issued in domestic violence cases in family, criminal and supreme courts in 2007 alone.
In New York and around the nation, several high profile domestic violence cases have renewed focus on the effects of domestic violence on its victims, children and our communities. In addition, some studies have indicated an increased risk of abusive conduct during difficult financial times The stresses of an economic downturn might also make it more difficult for victims of domestic violence to take the steps they need to get and stay safe.
While New York vigorously responds to domestic violence, improvements can be made to hold offenders accountable, support victims of domestic violence and protect our children from exposure to and involvement in domestic violence situations. This bill will implement legislative changes that will strengthen New York's support for victims and their children.
Stable housing and employment are often the most important resources a domestic violence victim needs in order to stay safe. It can be difficult for victims to obtain and maintain employment due to the stresses of domestic violence, the abuser's interference with the victim's ability to perform in the workplace or the need to access services that are necessary for safety. By including victims of domestic violence as a protected class in the employment provisions of the Human Rights Law, the State will ensure that victims will not be prevented from obtaining or maintaining employment merely as a result of their status as victims of domestic violence.
The bill would allow employees a reasonable accommodation in taking time off to, for example, seek medical attention or counseling or appear in court on matters related to incidents of domestic violence, including child protective proceedings, unless time off would constitute an undue hardship for the employer Employers would have the option of requiring that employees charge this time to accumulated leave credits or, where such leave credits are unavailable, take unpaid leave.
LEGISLATIVE HISTORY: 2012 - A.2348-A/S.5526 - PA; S. Rules 2011 A.2348-A/S.5526 - PA; S. Gov. Ops. 2010 - A.9018-A/S.6000-A; Veto 6759 '10 2009 - A.9018; PA
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: This bill is not expected to have a material impact on State finances.
EFFECTIVE DATE: This bill would take effect ninety days after it becomes a law.
STATE OF NEW YORK ________________________________________________________________________ 3385 2013-2014 Regular Sessions IN SENATE February 1, 2013 ___________Introduced by Sens. HASSELL-THOMPSON, KRUEGER -- read twice and ordered printed, and when printed to be committed to the Committee on Investi- gations and Government Operations AN ACT to amend the executive law, in relation to prohibiting employers from discriminating against victims of domestic violence; and to repeal certain provisions of such law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 34 of section 292 of the executive law is REPEALED and a new subdivision 34 is added to read as follows: 34. THE TERM "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS IS ASCRIBED TO SUCH TERM BY SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW. S 2. Paragraph (a) of subdivision 1 of section 296 of the executive law, as amended by chapter 80 of the laws of 2009, is amended to read as follows: (a) For an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or STATUS AS A VICTIM OF domestic violence
[victim status], to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. S 3. Section 296 of the executive law is amended by adding a new subdivision 20 to read as follows: 20. (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOY- ER OR LICENSING AGENCY, BECAUSE OF ANY INDIVIDUAL'S STATUS AS A VICTIM OF DOMESTIC VIOLENCE, TO REFUSE TO HIRE OR EMPLOY OR LICENSE OR TO BAR OR TO DISCHARGE FROM EMPLOYMENT SUCH INDIVIDUAL OR TO DISCRIMINATE AGAINST SUCH INDIVIDUAL IN COMPENSATION OR IN TERMS, CONDITIONS OR PRIV- ILEGES OF EMPLOYMENT.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03699-01-3 S. 3385 2
(B) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER OR EMPLOYMENT AGENCY TO PRINT OR CIRCULATE OR CAUSE TO BE PRINTED OR CIRCU- LATED ANY STATEMENT, ADVERTISEMENT OR PUBLICATION, OR TO USE ANY FORM OF APPLICATION FOR EMPLOYMENT OR TO MAKE ANY INQUIRY IN CONNECTION WITH PROSPECTIVE EMPLOYMENT WHICH EXPRESSES, DIRECTLY OR INDIRECTLY, ANY LIMITATION, SPECIFICATION OR DISCRIMINATION AS TO STATUS AS A VICTIM OF DOMESTIC VIOLENCE, OR ANY INTENT TO MAKE ANY SUCH LIMITATION, SPECIFICA- TION OR DISCRIMINATION; PROVIDED, HOWEVER, THAT NO PROVISION OF THIS SUBDIVISION SHALL BE CONSTRUED TO PROHIBIT THE EMPLOYER FROM MAKING ANY INQUIRY OR OBTAINING INFORMATION FOR THE PURPOSE OF PROVIDING ASSISTANCE TO, OR A REASONABLE ACCOMMODATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION TO, A VICTIM OF DOMESTIC VIOLENCE. (C)(1) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER TO REFUSE TO PROVIDE A REASONABLE ACCOMMODATION TO AN EMPLOYEE WHO IS KNOWN BY THE EMPLOYER TO BE A VICTIM OF DOMESTIC VIOLENCE, LIMITED TO THOSE ACCOMMODATIONS SET FORTH IN SUBPARAGRAPH TWO OF THIS PARAGRAPH, WHEN SUCH EMPLOYEE MUST BE ABSENT FROM WORK FOR A REASONABLE TIME, UNLESS SUCH ABSENCE WOULD CAUSE AN UNDUE HARDSHIP TO THE EMPLOYER AS SET FORTH IN SUBPARAGRAPH THREE OF THIS PARAGRAPH, PROVIDED, HOWEVER THAT THE EMPLOYER MAY REQUIRE AN EMPLOYEE TO CHARGE ANY TIME OFF PURSUANT TO THIS SECTION AGAINST ANY LEAVE WITH PAY ORDINARILY GRANTED, WHERE AVAIL- ABLE, UNLESS OTHERWISE PROVIDED FOR IN A COLLECTIVE BARGAINING AGREEMENT OR EXISTING EMPLOYEE HANDBOOK OR POLICY, AND ANY SUCH ABSENCE THAT CANNOT BE CHARGED MAY BE TREATED AS LEAVE WITHOUT PAY. AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN ACCORDANCE WITH SUBPARAGRAPH TWO OF THIS PARAGRAPH SHALL BE ENTITLED TO THE CONTINUATION OF ANY HEALTH INSURANCE COVERAGE PROVIDED BY THE EMPLOYER, TO WHICH THE EMPLOYEE IS OTHERWISE ENTITLED DURING ANY SUCH ABSENCE. (2) AN EMPLOYER IS REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION TO AN EMPLOYEE WHO IS A VICTIM OF DOMESTIC VIOLENCE WHO MUST BE ABSENT FROM WORK FOR A REASONABLE TIME, IN ACCORDANCE WITH THE PROVISIONS OF SUBPAR- AGRAPH ONE OF THIS PARAGRAPH, LIMITED TO THE FOLLOWING: (I) SEEKING MEDICAL ATTENTION FOR INJURIES CAUSED BY DOMESTIC VIOLENCE INCLUDING FOR A CHILD WHO IS A VICTIM OF DOMESTIC VIOLENCE, PROVIDED THAT THE EMPLOYEE IS NOT THE PERPETRATOR OF THE DOMESTIC VIOLENCE AGAINST THE CHILD; OR (II) OBTAINING SERVICES FROM A DOMESTIC VIOLENCE SHELTER, PROGRAM, OR RAPE CRISIS CENTER AS A RESULT OF DOMESTIC VIOLENCE; OR (III) OBTAINING PSYCHOLOGICAL COUNSELING RELATED TO AN INCIDENT OR INCIDENTS OF DOMESTIC VIOLENCE, INCLUDING FOR A CHILD WHO IS A VICTIM OF DOMESTIC VIOLENCE, PROVIDED THAT THE EMPLOYEE IS NOT THE PERPETRATOR OF THE DOMESTIC VIOLENCE AGAINST THE CHILD; OR (IV) PARTICIPATING IN SAFETY PLANNING AND TAKING OTHER ACTIONS TO INCREASE SAFETY FROM FUTURE INCIDENTS OF DOMESTIC VIOLENCE, INCLUDING TEMPORARY OR PERMANENT RELOCATION; OR (V) OBTAINING LEGAL SERVICES, ASSISTING IN THE PROSECUTION OF THE OFFENSE, OR APPEARING IN COURT IN RELATION TO THE INCIDENT OR INCIDENTS OF DOMESTIC VIOLENCE. (3) AN EMPLOYER IS REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION FOR AN EMPLOYEE'S ABSENCE IN ACCORDANCE WITH THE PROVISIONS OF SUBPARAGRAPHS ONE AND TWO OF THIS PARAGRAPH UNLESS THE EMPLOYER CAN DEMONSTRATE THAT THE EMPLOYEE'S ABSENCE WOULD CONSTITUTE AN UNDUE HARDSHIP TO THE EMPLOY- ER. A DETERMINATION OF WHETHER SUCH AN ABSENCE WILL CONSTITUTE AN UNDUE HARDSHIP SHALL INCLUDE CONSIDERATION OF FACTORS SUCH AS:S. 3385 3
(I) THE OVERALL SIZE OF THE BUSINESS, PROGRAM OR ENTERPRISE WITH RESPECT TO THE NUMBER OF EMPLOYEES, NUMBER AND TYPE OF FACILITIES, AND SIZE OF BUDGET; AND (II) THE TYPE OF OPERATION IN WHICH THE BUSINESS, PROGRAM OR ENTER- PRISE IS ENGAGED, INCLUDING THE COMPOSITION AND STRUCTURE OF THE WORK- FORCE. (4) AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN ACCORDANCE WITH THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARAGRAPH SHALL PROVIDE THE EMPLOYER WITH REASONABLE ADVANCE NOTICE OF THE EMPLOYEE'S ABSENCE, UNLESS SUCH ADVANCE NOTICE IS NOT FEASIBLE. (5) AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN ACCORDANCE WITH THE PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARAGRAPH AND WHO CANNOT FEASIBLY GIVE REASONABLE ADVANCE NOTICE OF THE ABSENCE IN ACCORDANCE WITH SUBPAR- AGRAPH FOUR OF THIS PARAGRAPH MUST, WITHIN A REASONABLE TIME AFTER THE ABSENCE, PROVIDE A CERTIFICATION TO THE EMPLOYER WHEN REQUESTED BY THE EMPLOYER. SUCH CERTIFICATION SHALL BE IN THE FORM OF: (I) A POLICE REPORT INDICATING THAT THE EMPLOYEE OR HIS OR HER CHILD WAS A VICTIM OF DOMESTIC VIOLENCE; (II) A COURT ORDER PROTECTING OR SEPARATING THE EMPLOYEE OR HIS OR HER CHILD FROM THE PERPETRATOR OF AN ACT OF DOMESTIC VIOLENCE; (III) OTHER EVIDENCE FROM THE COURT OR PROSECUTING ATTORNEY THAT THE EMPLOYEE APPEARED IN COURT; OR (IV) DOCUMENTATION FROM A MEDICAL PROFESSIONAL, DOMESTIC VIOLENCE ADVOCATE, HEALTH CARE PROVIDER, OR COUNSELOR THAT THE EMPLOYEE OR HIS OR HER CHILD WAS UNDERGOING COUNSELING OR TREATMENT FOR PHYSICAL OR MENTAL INJURIES OR ABUSE RESULTING IN VICTIMIZATION FROM AN ACT OF DOMESTIC VIOLENCE. (6) WHERE AN EMPLOYEE HAS A PHYSICAL OR MENTAL DISABILITY RESULTING FROM AN INCIDENT OR SERIES OF INCIDENTS OF DOMESTIC VIOLENCE, SUCH EMPLOYEE SHALL BE TREATED IN THE SAME MANNER AS AN EMPLOYEE WITH ANY OTHER DISABILITY, PURSUANT TO THE PROVISIONS OF THIS SECTION WHICH PROVIDE THAT DISCRIMINATION AND REFUSAL TO PROVIDE REASONABLE ACCOMMO- DATION OF DISABILITY ARE UNLAWFUL DISCRIMINATORY PRACTICES. (D) TO THE EXTENT ALLOWED BY LAW, EMPLOYERS SHALL MAINTAIN THE CONFI- DENTIALITY OF ANY INFORMATION REGARDING AN EMPLOYEE'S STATUS AS A VICTIM OF DOMESTIC VIOLENCE. S 4. This act shall take effect on the ninetieth day after it shall have become a law.