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New state bill would end secret sexual harassment settlements

ALBANY – A sweeping measure calling for new tools to address sexual harassment and assaults was proposed Friday by two female Republican senators in New York.

The proposal includes prohibiting courts from accepting secret sexual harassment settlements by alleged harassers or their employers.

"Celebrities are getting lots of attention, but this affects people across all spectrums and the low wage workers are the ones impacted the most because they feel they don't have a voice and they need their livelihoods just to survive, Sen. Catharine Young, an Olean Republican and the bill’s lead sponsor, said in an interview Friday.

The bill is also sponsored by Sen. Elaine Phillips, a freshman Republican senator from Long Island.

The legislation, which does not yet have an Assembly sponsor, seeks to “discourage serial predators” by banning courts from accepting secret settlement arrangements, such as confidentiality pacts that critics say are often pressured into acceptance by victims.

The measure would apply to sexual harassment and assault incidents in both public and private workplaces, Young said.

The secret settlement ban would, she said, ensure that the names of perpetrators in sexual harassment cases settled in court would be made public.

The legislation states that courts will be barred from accepting non-disclosure provisions in sexual harassment settlement cases. It states that "every settlement in which one dollar or more is paid shall be deemed to be an admission of the act of sexual harassment." It does, though, let courts okay some confidentiality provisions "only if such provision is approved by the court for good cause in an open proceeding.''

Additionally, the legislation seeks to end the experiences most visibly depicted in recent cases of alleged abuse by actresses who worked for film producer Harvey Weinstein; their legal remedies were limited in many cases because they were considered independent contractors.

The legislation would expand the definition of employer to include companies that hire independent contractors – from movie and news companies to hair salons. It would give sexual harassment protections to those workers in the same manner afforded employees.

The plan would also ban employers from assigning sexual harassment cases to mandatory arbitration proceedings. Young said such routes taken by some companies end up driving sexual harassment cases underground and away from the courts.

The legislative package also for the first time would set in state law a definition of sexual harassment, which the bill sponsors said now is largely left to the discretion of judges to determine in litigation. They cited one study that found nearly 40 percent of sexual harassment cases are dismissed pretrial in large part because of different judicial decisions about what constitutes sexual harassment.

The new bill would define sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of such conduct, explicitly or implicitly, affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment without regard to actual economic injury to or discharge of the individual.’’

In an interview, Young said she will be having talks soon with lawmakers in the Assembly about getting the new bill introduced in the 150-member chamber.

“I believe we will take action this coming legislative session because it is such a huge and apparently widespread problem,’’ Young said. “Every day we see story after story about new people finally having the courage to come forward. We have an obligation as state legislators to protect every New Yorker and that’s why this legislation has been introduced.”

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