By Vivian Wang
ALBANY — New York will ban most nondisclosure agreements and mandatory arbitration in sexual harassment complaints, and will require government employees found responsible for committing harassment to refund any taxpayer-financed payouts, according to a revision of state laws adopted by the Legislature on Friday.
Senator Catharine Young, a Republican from western New York who helped write the Senate’s original draft of the bill, called the measures “a major victory.”
“We’re going to protect everyone across the board, so I’m very very enthused about the fact that we have gotten it done,” she told reporters on Friday.
But the failure of the bills to actually define sexual harassment led some women’s rights advocates and employment lawyers to warn that the policies could be narrowly interpreted. They said the language should have incorporated a more expansive understanding of gender-based discrimination, as well.
A group of seven women who had previously worked as staff members in the Legislature and have publicly accused legislators of sexual harassment called the bill “ill-conceived and incomplete,” adding that true progress “must include listening to the victims who have actually endured the process.”
Several lawmakers also lamented the lack of transparency in the negotiation process, which did not include public hearings.
Senator Liz Krueger, a Democrat from Manhattan who has been vocal about the need for stricter policies, equivocated in her support, calling the bill “a really good try.”
Still, the bill passed the Senate unanimously, and an identical version passed the Assembly. It will go to Gov. Andrew M. Cuomo, who is expected to sign it into law.
The bill will cover both the public and private sectors, requiring employers to develop anti-harassment policies and training and barring the state from awarding bids to any company that failed to comply. It would also extend protections to independent contractors who might not be defined as employees. The new policies allow for publicly-funded payouts for substantiated claims of harassment against state employees, but would require them to reimburse the government within 90 days.
The bill does not, however, address settlements in which there is no formal finding of liability. In 2015, the state paid $545,000 to settle harassment claims related to a former assemblyman from Brooklyn, Vito Lopez.
The bill also does not address longstanding criticisms of the Joint Commission on Public Ethics, a committee made up in large part by members appointed by the governor. The group is investigating several high-profile harassment claims but has often been called toothless. Mr. Cuomo had suggested creating a new arm within the commission specifically to investigate harassment complaints, but Ms. Young said on Friday that it was unclear where that proposal stood, or if there would be money available to pay for it.
Ms. Young conceded that the wording of the new policies would not necessarily cover other forms of gender-based harassment, such as inappropriate comments. But she defended the need for a flexible definition of harassment, citing how quickly understandings of acceptable behavior have evolved in recent months in the wake of the #MeToo movement.
A stricter sexual harassment policy was one of just a few policy issues to be included in the budget talks. New York’s push mirrored those in many other state legislatures: 29 states have introduced new sexual harassment bills in 2018, according to the National Conference of State Legislatures, which called the number of proposals “unprecedented.”
But in Albany, as usual, policy quickly became inextricable from politics.
While lawmakers in both parties, as well as Mr. Cuomo, had agreed in principle on the need to formulate new policy — a rare point of consensus in the Capitol — the actual negotiations turned out to be anything but unifying.
Women’s rights advocates denounced Albany’s secretive model of budget negotiations, which they said would allow the new policies to be hammered out by “four men in a room”: Mr. Cuomo and three legislative leaders, including Senator Jeffrey D. Klein — who was accused in January of forcibly kissing a former staffer, Erica Vladimer.
Senate Democrats, who are a minority in the chamber, denounced their exclusion from the closed-door negotiations, which came after the governor’s office said in February that their conference leader, Senator Andrea Stewart-Cousins of Westchester, would be included in discussions.
On Wednesday, asked why Ms. Stewart-Cousins had not been privy to the leaders’ meetings, Mr. Cuomo told reporters that the new policies were being formulated not by the four men but by a “working group” for which Senate Democrats had been invited to provide input. But Ms. Stewart-Cousins said no such group existed.