Defines "victim of domestic violence"; prohibits employers from discriminating against victims of domestic violence.

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S5526-2011 Actions

• Mar 12, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
• Mar 12, 2012: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
• Jan 4, 2012: REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
• May 31, 2011: REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS

S5526-2011 Memo

BILL NUMBER:S5526

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 better define
the term "victim of domestic violence."

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:
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:
2009-10: S.6000-A/A.9018-A(John) - Veto Memo 6759

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.

S5526-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    5526

                         2011-2012 Regular Sessions

                              I N  SENATE

                                May 31, 2011
                                 ___________

  Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
    and when printed to be committed to the  Committee  on  Investigations
    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.
                                                             LBD06921-06-1

 S. 5526                             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. 5526                             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.