Clarifies the standard for when a practice has a discriminatory effect, the official text

S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8338
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                               June 3, 2025
                                ___________
 
 Introduced  by  Sen.  MAYER  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the executive law, in relation to clarifying the  stand-
   ard for when a practice has a discriminatory effect
 
   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 EMPLOYMENT  DISCRIMINATION  UNDER  THIS
 ARTICLE,  AN  UNLAWFUL  DISCRIMINATORY  PRACTICE MAY BE ESTABLISHED BY A
 PRACTICE'S DISCRIMINATORY EFFECT, EVEN IF SUCH PRACTICE  WAS  NOT  MOTI-
 VATED  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, BECAUSE OF THEIR MEMBERSHIP IN A CLASS
 PROTECTED UNDER THIS SECTION.
   (C) (I) A LEGALLY SUFFICIENT JUSTIFICATION EXISTS WHERE THE CHALLENGED
 PRACTICE:
   (A) IS JOB RELATED FOR THE POSITION IN QUESTION  AND  CONSISTENT  WITH
 BUSINESS NECESSITY; AND
   (B)  THAT  THE BUSINESS NECESSITY COULD NOT BE SERVED BY ANOTHER PRAC-
 TICE THAT HAS A LESS DISCRIMINATORY EFFECT.
   (II) 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)  (I) THE COMPLAINANT SHALL HAVE THE BURDEN OF PROVING THAT A CHAL-
 LENGED PRACTICE  CAUSED  OR  PREDICTABLY  WILL  CAUSE  A  DISCRIMINATORY
 EFFECT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13283-04-5
 S. 8338                             2
 
   (II)  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 JOB RELATED FOR THE  POSITION
 IN QUESTION AND CONSISTENT WITH BUSINESS NECESSITY.
   (III)  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  BUSINESS  NECESSITY COULD BE SERVED BY ANOTHER
 PRACTICE 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 employment
 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 and completed on or before such effective
 date.