S T A T E O F N E W Y O R K
________________________________________________________________________
7989
2019-2020 Regular Sessions
I N A S S E M B L Y
May 30, 2019
___________
Introduced by M. of A. JOYNER -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to discrimination in the use
of employment tests and selection procedures
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The labor law is amended by adding a new section 215-d to
read as follows:
§ 215-D. EMPLOYMENT TESTS AND SELECTION PROCEDURES. 1. IF AN EMPLOYER
UTILIZES A TEST OR OTHER SELECTION PROCEDURE FOR PURPOSES OF HIRING OR
PROMOTION, THE EMPLOYER SHALL SELECT AND ADMINISTER THE TEST OR OTHER
SELECTION PROCEDURE SO AS BEST TO ENSURE THAT, WHEN ADMINISTERED TO
APPLICANTS, THE TEST OR SELECTION PROCEDURE IS NOT DESIGNED, INTENDED OR
USED TO DISCRIMINATE, AND DOES NOT HAVE THE EFFECT OF DISCRIMINATING,
BECAUSE OF AN INDIVIDUAL'S RACE, ETHNIC GROUP, OR SEX. IN SELECTING OR
ADMINISTERING SUCH TEST OR SELECTION PROCEDURE, THE EMPLOYER SHALL
INVESTIGATE ALTERNATIVE TESTS AND SELECTION PROCEDURES AND SHALL SELECT
THE ALTERNATIVE THAT POSES THE LOWEST RISK OF DISCRIMINATORY IMPACT.
2. FOR PURPOSES OF SUBDIVISION ONE OF THIS SECTION AND PARAGRAPH (A)
OF SUBDIVISION ONE OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE
LAW, A TEST OR OTHER SELECTION PROCEDURE USED BY AN EMPLOYER FOR
PURPOSES OF HIRING OR PROMOTION SHALL BE DEEMED NOT TO DISCRIMINATE ON
THE BASIS OF A FINDING OF ADVERSE IMPACT AGAINST A SPECIFIC PROTECTED
CLASS IF, FOR THE SPECIFIC PROTECTED CLASS:
(A) THE TEST OR SELECTION PROCEDURE UTILIZES PRE-AUDITED ASSESSMENT
TECHNOLOGY THAT, UPON USE, RESULTED IN AN INCREASE IN THE HIRING OR
PROMOTION OF THAT PROTECTED CLASS BY FIVE PERCENT OR GREATER AS COMPARED
TO THE PRE-IMPLEMENTATION WORKFORCE COMPOSITION OF THE PROTECTED CLASS;
(B) THE EMPLOYER CONDUCTS AN ANNUAL EXAMINATION OF THE PRE-AUDITED
ASSESSMENT TECHNOLOGY TO DETERMINE AND DOCUMENT WHETHER THE TECHNOLOGY
HAD AN ADVERSE IMPACT FOR THE PROTECTED CLASS DURING THE AUDITED YEAR;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11934-01-9
A. 7989 2
(C) THE ANNUAL EXAMINATION DEMONSTRATES THAT THE PRE-AUDITED ASSESS-
MENT TECHNOLOGY:
(I) RESULTED IN AN INCREASE IN THE HIRING OR PROMOTION OF THE
PROTECTED CLASS BY FIVE PERCENT OR GREATER DURING THE EXAMINED YEAR AS
COMPARED TO THE PRE-IMPLEMENTATION WORKFORCE COMPOSITION OF THE
PROTECTED CLASS; OR
(II) RESULTED IN NO ADVERSE IMPACT ON THE PROTECTED CLASS; AND
(D) THE EMPLOYER CEASES TO USE ANY VERSION OF THE PRE-AUDITED ASSESS-
MENT TECHNOLOGY THAT DOES NOT MEET THE REQUIREMENTS OF PARAGRAPH (C) OF
THIS SUBDIVISION.
3. SUBDIVISION TWO OF THIS SECTION SHALL NOT IMPACT ANY OTHER DEFENSE
AN EMPLOYER MAY HAVE TO CLAIMS OF EMPLOYMENT DISCRIMINATION UNDER ANY
OTHER PROVISION OF LAW.
4. FOR PURPOSES OF THIS SECTION:
(A) "PRE-AUDITED ASSESSMENT TECHNOLOGY" SHALL MEAN A TEST OR OTHER
SELECTION PROCEDURE USED BY AN EMPLOYER FOR PURPOSES OF HIRING OR
PROMOTION THAT:
(I) PRIOR TO USE BY THE EMPLOYER, WAS THE SUBJECT OF A VALIDITY STUDY
CONDUCTED BY THE EMPLOYER THAT CONFORMS TO THE REQUIREMENTS FOR VALIDITY
STUDIES SET FORTH IN 29 C.F.R. SECTION 1607.5; AND
(II) PRIOR TO USE BY THE EMPLOYER, WAS EXAMINED AND DEMONSTRATED NO
PROBABILITY FOR ADVERSE IMPACT BASED ON RACE, COLOR, NATIONAL ORIGIN, OR
SEX.
(B) "ADVERSE IMPACT" SHALL BE INDICATED WHERE A SELECTION RATE FOR ANY
RACE, COLOR, NATIONAL ORIGIN, OR SEX CONSTITUTING TWO PERCENT OR MORE OF
THE TOTAL APPLICANT POPULATION IS LESS THAN FOUR-FIFTHS OR EIGHTY
PERCENT OF THE RATE FOR THE GROUP WITH THE HIGHEST SELECTION RATE AND
WHERE SUCH DIFFERENCE IN SELECTION RATES BETWEEN SUCH GROUPS IS STATIS-
TICALLY SIGNIFICANT.
(C) "PRE-IMPLEMENTATION WORKFORCE COMPOSITION" MEANS THE DEMOGRAPHIC
COMPOSITION OF A PROTECTED CLASS AS A PERCENTAGE OF THE EMPLOYER'S OVER-
ALL WORKFORCE THAT EXISTED IMMEDIATELY PRIOR TO IMPLEMENTATION OF A
PRE-AUDITED ASSESSMENT TECHNOLOGY.
(D) "PROTECTED CLASS" SHALL MEAN RACE, ETHNIC GROUP, OR SEX.
(E) "APPLICANT" SHALL MEAN ANY INDIVIDUAL AS TO WHOM THE FOLLOWING
FOUR CRITERIA ARE SATISFIED:
(I) THE INDIVIDUAL SUBMITS AN EXPRESSION OF INTEREST IN EMPLOYMENT OR
PROMOTION;
(II) THE EMPLOYER CONSIDERS THE INDIVIDUAL FOR EMPLOYMENT IN OR
PROMOTION TO A PARTICULAR POSITION;
(III) THE INDIVIDUAL'S EXPRESSION OF INTEREST INDICATES THE INDIVIDUAL
POSSESSES THE BASIC QUALIFICATIONS FOR THE POSITION; AND
(IV) THE INDIVIDUAL AT NO POINT IN THE SELECTION PROCESS, PRIOR TO
RECEIVING AN OFFER OR PROMOTION, REMOVES HIMSELF OR HERSELF FROM FURTHER
CONSIDERATION OR OTHERWISE INDICATES THAT HE OR SHE IS NO LONGER INTER-
ESTED IN THE POSITION.
§ 2. This act shall take effect immediately.