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.