Codifies the disparate impact standard in the human rights law, the official text

S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4040--A
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 30, 2025
                                ___________
 
 Introduced  by  M.  of  A.  LASHER,  WRIGHT, P. CARROLL, EPSTEIN, GLICK,
   GONZALEZ-ROJAS, HEVESI, HOOKS, KELLES,  LEVENBERG,  O'PHARROW,  REYES,
   SHIMSKY,  TAPIA,  TORRES, ZACCARO, ZINERMAN, GALLAGHER, SCHIAVONI, LEE
   -- read once and referred to the Committee on Governmental  Operations
   --  committee  discharged,  bill amended, ordered reprinted as amended
   and recommitted to said committee
 
 AN ACT to amend the executive law, in relation to codifying  the  dispa-
   rate impact standard in the human rights law
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 296 of the executive law is amended by adding a new
 subdivision 5-a to read as follows:
   5-A. (A) FOR ANY CASE ALLEGING HOUSING DISCRIMINATION UNDER THIS ARTI-
 CLE, AN UNLAWFUL DISCRIMINATORY PRACTICE MAY BE ESTABLISHED BY  A  PRAC-
 TICE'S DISCRIMINATORY EFFECT, EVEN IF SUCH PRACTICE WAS NOT MOTIVATED BY
 A  DISCRIMINATORY  INTENT. THE PRACTICE MAY STILL BE LAWFUL IF SUPPORTED
 BY A LEGALLY SUFFICIENT JUSTIFICATION, AS DEFINED IN  PARAGRAPH  (C)  OF
 THIS SUBDIVISION.
   (B) FOR THE PURPOSES OF THIS SUBDIVISION, A PRACTICE HAS A DISCRIMINA-
 TORY  EFFECT  WHERE  IT  ACTUALLY  OR PREDICTABLY RESULTS IN A DISPARATE
 IMPACT ON A GROUP OF  PERSONS  OR  CREATES,  INCREASES,  REINFORCES,  OR
 PERPETUATES  SEGREGATED  HOUSING PATTERNS BECAUSE OF RACE, CREED, COLOR,
 NATIONAL ORIGIN, CITIZENSHIP OR IMMIGRATION STATUS, SEXUAL  ORIENTATION,
 GENDER  IDENTITY  OR  EXPRESSION, MILITARY STATUS, SEX, AGE, DISABILITY,
 MARITAL STATUS, STATUS AS A VICTIM OF DOMESTIC VIOLENCE,  LAWFUL  SOURCE
 OF INCOME OR FAMILIAL.
   (C) (1) A LEGALLY SUFFICIENT JUSTIFICATION EXISTS WHERE THE CHALLENGED
 PRACTICE:
   (I)  IS  NECESSARY  TO  ACHIEVE  ONE  OR MORE SUBSTANTIAL, LEGITIMATE,
 NONDISCRIMINATORY INTERESTS OF THE RESPONDENT; AND
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05110-04-5
 A. 4040--A                          2
 
   (II) THOSE INTERESTS COULD NOT BE SERVED BY ANOTHER PRACTICE THAT  HAS
 A LESS DISCRIMINATORY EFFECT.
   (2)  A LEGALLY SUFFICIENT JUSTIFICATION SHALL BE SUPPORTED BY EVIDENCE
 AND MAY NOT BE HYPOTHETICAL OR SPECULATIVE. THE  BURDENS  OF  PROOF  FOR
 ESTABLISHING EACH OF THE TWO ELEMENTS OF A LEGALLY SUFFICIENT JUSTIFICA-
 TION ARE SET FORTH IN PARAGRAPH (D) OF THIS SUBDIVISION.
   (D)  (1) THE COMPLAINANT SHALL HAVE THE BURDEN OF PROVING THAT A CHAL-
 LENGED PRACTICE  CAUSED  OR  PREDICTABLY  WILL  CAUSE  A  DISCRIMINATORY
 EFFECT.
   (2)  ONCE  THE  COMPLAINANT SATISFIES THE BURDEN OF PROOF SET FORTH IN
 SUBPARAGRAPH ONE OF THIS PARAGRAPH, THE RESPONDENT SHALL HAVE THE BURDEN
 OF PROVING THAT THE CHALLENGED PRACTICE IS NECESSARY TO ACHIEVE  ONE  OR
 MORE   SUBSTANTIAL,   LEGITIMATE,  NONDISCRIMINATORY  INTERESTS  OF  THE
 RESPONDENT.
   (3) IF THE RESPONDENT SATISFIES THE  BURDEN  OF  PROOF  SET  FORTH  IN
 SUBPARAGRAPH  TWO  OF  THIS PARAGRAPH, THE COMPLAINANT MAY STILL PREVAIL
 UPON PROVING THAT THE SUBSTANTIAL, LEGITIMATE, NONDISCRIMINATORY  INTER-
 ESTS SUPPORTING THE CHALLENGED PRACTICE COULD BE SERVED BY ANOTHER PRAC-
 TICE THAT HAS A LESS DISCRIMINATORY EFFECT.
   (E)  A  DEMONSTRATION THAT A PRACTICE IS SUPPORTED BY A LEGALLY SUFFI-
 CIENT JUSTIFICATION, AS DEFINED IN PARAGRAPH (C)  OF  THIS  SUBDIVISION,
 MAY  NOT  BE  USED AS A DEFENSE AGAINST A CLAIM OF INTENTIONAL DISCRIMI-
 NATION.
   (F) NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED OR  INTERPRETED  AS
 LIMITING,  RESTRICTING, OVERRIDING, OR SUPPLANTING ANY BROADER INTERPRE-
 TATION OF THE DISCRIMINATORY PRACTICES DESCRIBED IN THIS ARTICLE OR  THE
 AVAILABILITY OF LIABILITY UNDER THIS ARTICLE.
   §  2.  This  act  shall take effect immediately and shall apply to all
 cases alleging unlawful discriminatory  practices  constituting  housing
 discrimination  occurring  on  and  after such effective date. Effective
 immediately, the addition, amendment and/or repeal of any rule or  regu-
 lation  necessary  for  the  implementation of this act on its effective
 date are authorized to be made on or before such effective date.