S T A T E O F N E W Y O R K
________________________________________________________________________
6086--A
2019-2020 Regular Sessions
I N S E N A T E
May 16, 2019
___________
Introduced by Sen. RAMOS -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
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, SUCH EMPLOYER SHALL SELECT AND ADMINISTER SUCH TEST OR OTHER
SELECTION PROCEDURE IN A MANNER WHICH BEST ENSURES THAT, WHEN ADMINIS-
TERED TO APPLICANTS, SUCH TEST IS NOT DESIGNED, INTENDED, OR USED TO
DISCRIMINATE, AND DOES NOT HAVE A DISCRIMINATORY EFFECT, ON THE BASIS OF
AN APPLICANT'S RACE, ETHNIC GROUP, OR SEX. IN SELECTING OR ADMINISTERING
SUCH TEST OR SELECTION PROCEDURE, SUCH EMPLOYER SHALL INVESTIGATE ALTER-
NATIVE 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, ANY 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 SUCH PROTECTED CLASS:
(A) SUCH TEST OR SELECTION PROCEDURE UTILIZES A PRE-AUDITED ASSESSMENT
TECHNOLOGY THAT, UPON USE, RESULTED IN AN INCREASE IN THE HIRING OR
PROMOTION OF SUCH PROTECTED CLASS BY FIVE PERCENT OR GREATER AS COMPARED
TO THE PRE-IMPLEMENTATION WORKFORCE COMPOSITION OF SUCH PROTECTED CLASS;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11804-02-9
S. 6086--A 2
(B) SUCH EMPLOYER CONDUCTS AN ANNUAL EXAMINATION OF SUCH PRE-AUDITED
ASSESSMENT TECHNOLOGY TO DETERMINE AND DOCUMENT WHETHER SUCH TECHNOLOGY
HAD AN ADVERSE IMPACT ON SUCH PROTECTED CLASS DURING THE AUDITED YEAR;
(C) SUCH ANNUAL EXAMINATION DEMONSTRATES THAT SUCH PRE-AUDITED ASSESS-
MENT TECHNOLOGY:
(I) RESULTED IN AN INCREASE IN THE HIRING OR PROMOTION OF SUCH
PROTECTED CLASS BY FIVE PERCENT OR GREATER DURING THE EXAMINED YEAR AS
COMPARED TO THE PRE-IMPLEMENTATION WORKFORCE COMPOSITION OF SUCH
PROTECTED CLASS; OR
(II) RESULTED IN NO ADVERSE IMPACT ON SUCH PROTECTED CLASS; AND
(D) SUCH EMPLOYER CEASES TO USE ANY VERSION OF SUCH PRE-AUDITED
ASSESSMENT 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 SUCH EMPLOYER, WAS THE SUBJECT OF VALIDITY STUDY
CONDUCTED BY SUCH EMPLOYER THAT CONFORMS TO THE REQUIREMENTS FOR VALIDI-
TY STUDIES SET FORTH IN 29 CFR 1607.5; AND
(II) PRIOR TO USE BY SUCH EMPLOYER, WAS EXAMINED, AND DEMONSTRATED NO
PROBABILITY FOR ADVERSE IMPACT BASED ON RACE, COLOR, NATIONAL ORIGIN, OR
SEX.
(B) AN "ADVERSE IMPACT" SHALL EXIST WHERE THE SELECTION RATE FOR ANY
RACE, COLOR, NATIONAL ORIGIN, OR SEX CONSTITUTING TWO PERCENT OR MORE OF
THE TOTAL APPLICANT POPULATION IS LESS THAN EIGHTY PERCENT OF THE RATE
FOR THE GROUP WITH THE HIGHEST SELECTION RATE AND WHERE THE DIFFERENCE
BETWEEN THOSE RATES IS STATISTICALLY SIGNIFICANT.
(C) "PRE-IMPLEMENTATION WORKFORCE COMPOSITION" SHALL MEAN THE DEMO-
GRAPHIC COMPOSITION OF A PROTECTED CLASS AS A PERCENTAGE OF THE EMPLOY-
ER'S OVERALL WORKFORCE THAT EXISTED IMMEDIATELY PRIOR TO IMPLEMENTATION
OF A PRE-AUDITED ASSESSMENT TECHNOLOGY.
(D) "PROTECTED CLASS" SHALL MEAN ANY CLASS OF PERSONS BASED ON RACE,
ETHNIC GROUP, OR SEX.
(E) "APPLICANT" SHALL MEAN ANY INDIVIDUAL AS TO WHOM THE FOLLOWING
FOUR CRITERIA ARE SATISFIED:
(I) SUCH INDIVIDUAL SUBMITS AN EXPRESSION OF INTEREST IN EMPLOYMENT OR
PROMOTION;
(II) THE EMPLOYER CONSIDERS SUCH INDIVIDUAL FOR EMPLOYMENT IN OR
PROMOTION TO A PARTICULAR POSITION;
(III) SUCH INDIVIDUAL'S EXPRESSION OF INTEREST INDICATES THAT SUCH
INDIVIDUAL POSSESSES THE BASIC QUALIFICATIONS FOR SUCH POSITION; AND
(IV) SUCH 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 SUCH POSITION.
(F) THE TERM "EMPLOYER" SHALL NOT INCLUDE (I) ANY EMPLOYER WITH FEWER
THAN ONE HUNDRED PERSONS IN HIS OR HER EMPLOY OR (II) THE STATE OF NEW
YORK, MUNICIPAL CORPORATIONS, OR OTHER GOVERNMENTAL ENTITIES.
§ 2. This act shall take effect on the thirtieth day after it shall
have become a law.