Senate Bill S3302

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

                                  3302

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 16, 2009
                               ___________

Introduced  by  Sen.  OPPENHEIMER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Corporations, Author-
  ities and Commissions

AN ACT to amend the New York state urban development corporation act, in
  relation to certain employment discrimination

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative  intent. It is hereby found and declared that
the state has had a leadership role in maximizing equal  opportunity  in
employment  for  all  its  citizens, but that in many communities in the
state, because of past sex discrimination, women and  women-owned  busi-
ness enterprises do not have such equal opportunity.
  It  is  further  found  and  declared  that  as  a result of such past
discrimination, many women and women-owned business enterprises  do  not
enjoy  full  opportunity to participate in and contribute to the state's
economy, or to obtain the experience necessary to become more productive
contributors to the economy.
  It is further found and declared  that  the  lack  of  opportunity  to
participate  in public contracts tends to decrease the pool of available
labor, thereby adversely affecting the cost and progress of such  public
contracts.
  It  is  further  found  and  declared  that the state has a compelling
interest in eradicating the effects of  such  past  discrimination,  and
that  well chosen efforts at eradication result in a gain which substan-
tially outweighs any detrimental effects.
  It is further found and declared that the  patterns,  causes,  effects
and  victims  of such past discrimination have varied and do vary widely
among communities, occupations and industries, and that no one  approach
to  remedying  the effects of this discrimination will be most effective
in all  circumstances,  but  rather  that,  where  feasible,  corrective
programs should be tailored to the particular situation.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09287-01-9
              

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  It  is  further found and declared that under some circumstances equal
opportunity can be afforded to women  and  women-owned  business  enter-
prises, only by the temporary use of preferential methods such as numer-
ical  goals  for participation by women and women-owned enterprises, and
that  such methods can and should be carefully chosen, using statistical
and other information where available, so that the methods are  employed
only  where  they are considered necessary to achieve equal opportunity,
and have the least practicable adverse impact on men and men-owned busi-
nesses.
  It is further found and declared that the New York state urban  devel-
opment  corporation  and its subsidiaries have developed extensive know-
ledge and expertise in the areas of manpower development  and  training,
urban  blight  and  revitalization,  affirmative  action, the letting of
public contracts, the construction of public projects, and  the  statis-
tical analysis of employment and economic patterns throughout the state.
  It  is further found and declared that the New York state urban devel-
opment corporation and its subsidiaries have the requisite knowledge and
expertise to examine employment  and  economic  patterns  in  particular
communities,  occupations  and  industries, and to ascertain whether the
effects of past discrimination persist, and if so, how they  might  best
be remedied.
  It is further found and declared that affirmative action is consistent
with,  and a necessary component of fulfilling, the New York state urban
development corporation's mission of  revitalizing  the  blighted  urban
areas  and  the economy of the state, and of improving the conditions of
the low income residents of the state.
  Therefore, it is hereby found and declared that it is  in  the  public
interest  and  necessary  and  desirable  that  the New York state urban
development corporation, for itself and for  its  subsidiaries,  develop
and  implement  affirmative  action  programs where and as necessary for
their projects, applicable to the corporation and its subsidiaries,  and
their  projects  and  activities, and their contractors, subcontractors,
consultants, vendees and lessees, based where necessary upon analysis of
the circumstances in the relevant communities,  occupations  and  indus-
tries,  with  the goal of ensuring equal opportunity for women and busi-
ness enterprises actually owned and operated by women.
  S 2. This act shall be deemed an exercise of the police power and  the
procurement  power of the state, and in fulfillment of the provisions of
the constitution of the state concerning civil rights.
  S 3. Section 4 of section 1 of  chapter  174  of  the  laws  of  1968,
constituting  the  New  York state urban development corporation act, is
amended by adding a new subdivision 12 to read as follows:
  (12) THE CORPORATION AND EACH OF  ITS  SUBSIDIARIES,  WHETHER  CREATED
SPECIALLY  BY  STATUTE  OR  OTHERWISE,  SHALL TAKE AFFIRMATIVE ACTION IN
WORKING WITH CONSTRUCTION FIRMS, CONTRACTORS,  SUBCONTRACTORS,  CONSULT-
ANTS  AND  OTHER  FIRMS,  TO THE END THAT WOMEN AND BUSINESS ENTERPRISES
OWNED AND OPERATED BY WOMEN, SHALL  BE  AFFORDED  EQUAL  OPPORTUNITY  TO
PARTICIPATE  IN  THE PLANNING, CONSTRUCTION AND OPERATION OF PROJECTS OF
THE CORPORATION AND ITS SUBSIDIARIES, AND IN ALL OTHER ACTIVITIES OF THE
CORPORATION AND ITS SUBSIDIARIES.  TOWARD THIS END:  (A) THE CORPORATION
SHALL FROM TIME TO TIME GATHER INFORMATION AND MAKE WRITTEN FINDINGS, IF
WARRANTED, WITH RESPECT TO THE AREAS OF THE STATE WHERE ITS PROJECTS ARE
LOCATED, CONCERNING THE EFFECTS OF ANY PAST DISCRIMINATION AGAINST WOMEN
AND BUSINESS ENTERPRISES OWNED AND OPERATED BY WOMEN.
  (B) SUCH FINDINGS MAY, BUT NEED NOT BE BASED, IN  WHOLE  OR  IN  PART,
UPON  STATISTICS  INDICATING  THAT CERTAIN WOMEN OR BUSINESS ENTERPRISES

S. 3302                             3

OWNED AND OPERATED BY WOMEN HAVE A DISPROPORTIONATELY LOW  PARTICIPATION
IN  RELEVANT  OCCUPATIONS  OR  INDUSTRIES IN THE AREA, RELATIVE TO THEIR
PROPORTION IN THE RELEVANT POPULATION OR LABOR FORCE.
  (C)  THE  CORPORATION  SHALL  ADOPT,  IN  WRITING,  AND IMPLEMENT SUCH
ACTIONS TO ACHIEVE AND MAINTAIN EQUAL EMPLOYMENT AND  BUSINESS  OPPORTU-
NITY AS IT MAY REASONABLY DEEM NECESSARY AND APPROPRIATE. IN APPROPRIATE
INSTANCES,  THESE  ACTIONS  MAY INCLUDE, WITHOUT LIMITATION, AFFIRMATIVE
EFFORTS AT RECRUITMENT, COUNSELLING, TRAINING,  AND  COMMUNITY  LIAISON,
AND  WHEN FINDINGS OF DISCRIMINATION HAVE BEEN MADE, AND NOTWITHSTANDING
ANY OTHER PROVISION OF STATE OR LOCAL LAW, THE TEMPORARY USE OF  ATTAIN-
ABLE  PREFERENTIAL METHODS TO ENSURE THAT WOMEN AND BUSINESS ENTERPRISES
ACTUALLY OWNED AND OPERATED BY WOMEN MAY PARTICIPATE FULLY IN THE  PLAN-
NING,  CONSTRUCTION  AND OPERATION OF THE APPLICABLE PROJECT, AND IN THE
OCCUPATIONS AND INDUSTRIES WHICH PARTICIPATE IN SUCH PROJECT. AS USED IN
THE PRECEDING SENTENCE, THE TERM "OWNED" MEANS BONA FIDE OWNERSHIP OF AT
LEAST FIFTY PER CENTUM OF THE BUSINESS ENTERPRISE, AND THE  TERM  "OPER-
ATED"  MEANS  THE CONTROL OF THE MANAGEMENT AND DAILY OPERATIONS OF SUCH
BUSINESS ENTERPRISE. NO METHOD SELECTED SHALL MANDATE THE  DISCHARGE  OF
ANY  WORKER  BECAUSE  OF  HIS  OR  HER SEX. WHERE APPROPRIATE BECAUSE OF
DIFFERING CIRCUMSTANCES, THE CORRECTIVE ACTIONS CHOSEN MAY DIFFER  AMONG
AREAS  AND  PROJECTS, AND WITHIN PROJECTS AMONG OCCUPATIONS, INDUSTRIES,
AND CONTRACTS. NOTHING IN THIS SUBDIVISION SHALL BE  DEEMED  TO  REQUIRE
THE  HIRING  OF  UNQUALIFIED  WORKERS,  OR  TO AUTHORIZE THE AWARDING OF
CONTRACTS TO ENTERPRISES THAT ARE NOT RESPONSIBLE AND RELIABLE AND QUAL-
IFIED TO PERFORM THE WORK REQUIRED.
  (D) IN DETERMINING WHETHER A BIDDER OR  PROPOSED  CONTRACTOR  FOR  ANY
TYPE  OF WORK LET OR SERVICES PROCURED BY THE CORPORATION OR ITS SUBSID-
IARIES IS  RESPONSIBLE,  THE  CORPORATION  AND  ITS  SUBSIDIARIES  SHALL
CONSIDER  (BUT  NEED  NOT  LIMIT THEIR CONSIDERATION TO) THE ABILITY AND
WILLINGNESS OF SUCH BIDDER OR PROPOSED CONTRACTOR  TO  PROVIDE,  AND  TO
COMMIT  TO  PROVIDE, FOR PARTICIPATION OF WOMEN AND BUSINESS ENTERPRISES
ACTUALLY OWNED AND OPERATED BY WOMEN, TO THE EXTENT DETERMINED NECESSARY
PURSUANT TO THIS SUBDIVISION, AND  IN  ACCORDANCE  WITH  THE  PROCEDURES
ESTABLISHED HEREIN.
  (E)  THE  CORPORATION AND ITS SUBSIDIARIES, IF NECESSARY OR CONVENIENT
TO  ACHIEVE  THE  PURPOSES  OF  THIS  SUBDIVISION,  MAY  IMPOSE  THROUGH
CONTRACT,  LEASE  OR CONVEYANCE PROVISIONS OR OTHERWISE, THE AFFIRMATIVE
ACTION MEASURES UNDERTAKEN PURSUANT TO THIS SUBDIVISION UPON ANY PERSONS
OR ENTITIES THAT PLAN, CONSTRUCT OR OPERATE ITS PROJECTS, INCLUDING  BUT
NOT LIMITED TO THOSE PROJECTS WHOSE CONSTRUCTION IS COMPLETE, AND WHETH-
ER  OR  NOT  THE  CORPORATION  OR ANY OF ITS SUBSIDIARIES RETAINS A REAL
PROPERTY INTEREST IN ANY PORTION OF THE PROJECT.
  (F) THE CORPORATION IN ITS ANNUAL  REPORT  SHALL  FULLY  DESCRIBE  ITS
ACTIVITIES  PURSUANT  TO  THIS  SUBDIVISION, SO THAT THE LEGISLATURE MAY
FROM TIME TO TIME REASSESS ITS DELEGATION TO  THE  CORPORATION  AND  ITS
SUBSIDIARIES  OF FACT-FINDING AND IMPLEMENTING RESPONSIBILITIES CONCERN-
ING AFFIRMATIVE ACTION.
  (G) THE CORPORATION MAY FROM TIME TO TIME PROMULGATE PROCEDURES, REGU-
LATIONS AND  INTERPRETATIONS  NECESSARY  OR  CONVENIENT  TO  EFFECT  THE
PURPOSES  OF THIS SUBDIVISION. SUCH PROMULGATIONS SHALL NOT BE DEEMED TO
BE "RULES" FOR PURPOSES OF CHAPTER 167 OF THE LAWS OF 1975, AS AMENDED.
  S 4. If any provisions of this act, or the application thereof to  any
person  or  circumstances  shall  be  adjudged by any court of competent
jurisdiction to be invalid or unenforceable,  such  judgment  shall  not
affect,  impair  or invalidate the remainder of this act or the applica-
tion of such provision to any other person or circumstance, but shall be

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confined in its operation to  the  provision,  person  and  circumstance
directly  involved  in the controversy in which such judgment shall have
been rendered.
  S 5.  This act shall take effect immediately.