S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5784
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 25, 2021
                                ___________
 
 Introduced  by M. of A. SOLAGES -- read once and referred to the Commit-
   tee on Governmental Operations
 
 AN ACT to amend the executive law, in relation to certain discriminatory
   practices; and to amend the education law, in relation to  the  quali-
   fication of professionals in education

   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  two
 new subdivisions 23 and 24 to read as follows:
   23. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER OR
 LICENSING  AGENCY TO BAR ANY MEMBER OF A PROTECTED CLASS FROM EMPLOYMENT
 OPPORTUNITY BY VIOLATING AN ESTABLISHED LAW OR POLICY  THAT  WOULD  HAVE
 PROVIDED SUCH MEMBER OF THE PROTECTED CLASS WITH EQUAL EMPLOYMENT OPPOR-
 TUNITY.
   24.  THE  ONLY LEGITIMATE BUSINESS OR OCCUPATIONAL NECESSITY EXEMPTION
 FOR EXCLUDING A PROTECTED CLASS FROM EQUAL EMPLOYMENT OPPORTUNITY  SHALL
 BE A REAL OCCUPATIONAL QUALIFICATION.
   §  2.  Section  292  of  the  executive law is amended by adding a new
 subdivision 31 to read as follows:
   31. THE TERM "REAL OCCUPATIONAL  QUALIFICATION",  WHEN  USED  IN  THIS
 ARTICLE,  MEANS  THE  POSSESSION OF A GOVERNMENTALLY OR PRIVATELY ISSUED
 CERTIFICATION, LICENSE, DIPLOMA, OR DEGREE, OR A SCORED  EXAMINATION  OR
 ASSESSMENT  OF  KNOWLEDGE OR SKILLS NECESSARY FOR THE VACANT POSITION OF
 EMPLOYMENT.
   § 3. The education law is amended by adding a new  section  3009-a  to
 read as follows:
   §  3009-A. HIRING OUTSTANDING PROFESSIONALS IN EDUCATION. 1. NO PERSON
 SHALL BE APPOINTED TO A CERTIFICATED POSITION IN A PUBLIC SCHOOL  UNLESS
 THE  POSITION  WAS PUBLICLY ADVERTISED FOR A MINIMUM OF FOURTEEN CONSEC-
 UTIVE DAYS WITHIN THE PERIOD  OF  NINETY  DAYS  PRIOR  TO  THE  DATE  OF
 APPOINTMENT.  THE FOURTEEN CONSECUTIVE DAYS MAY ONLY BE REDUCED TO SEVEN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09386-01-1

 A. 5784                             2
 
 CONSECUTIVE DAYS TO APPOINT A CLASSROOM TEACHER WITHIN THE FOURTEEN DAYS
 PRIOR TO THE FIRST DAY OF STUDENT ATTENDANCE IN AUGUST OR SEPTEMBER.
   2. NO PERSON SHALL BE APPOINTED TO A CERTIFICATED POSITION IN A PUBLIC
 SCHOOL  WITHOUT HAVING APPLIED FOR THE CERTIFICATED POSITION IN RESPONSE
 TO A PUBLIC ADVERTISEMENT OF THE CERTIFICATED POSITION ON OR BEFORE  THE
 PUBLISHED DEADLINE.
   3.  NO PERSON SHALL BE APPOINTED TO A CERTIFICATED POSITION PRIOR TO A
 SCHOOL-CONDUCTED EXAMINATION OR SCORED ASSESSMENT OF FITNESS OF AT LEAST
 TWO DIFFERENT PERSONS FOR THE SPECIFIC CERTIFICATED POSITION. SUCH EXAM-
 INATIONS OR SCORED ASSESSMENTS OF FITNESS MAY BE, BUT  ARE  NOT  LIMITED
 TO,  ONE-TO-ONE INTERVIEWS, PANEL INTERVIEWS, CONTENT AREA EXAMINATIONS,
 WRITING SAMPLES, DEMONSTRATION LESSONS, AND  SAMPLE  LESSON  PLANS  WITH
 RECORDS  OF SUCH EXAMINATIONS OR SCORED ASSESSMENTS PHYSICALLY FILED FOR
 A MINIMUM OF SEVEN YEARS AND ELECTRONICALLY FILED PERMANENTLY.
   4. NO PERSON SHALL BE APPOINTED TO  A  CERTIFICATED  POSITION  WITHOUT
 POSSESSING  THE  REQUISITE  CERTIFICATE  FOR  THE  CERTIFICATED POSITION
 ACCORDING TO COMMISSIONER REGULATIONS.
   5. NO PERSON SHALL BE APPOINTED TO A CERTIFICATED POSITION IN A PUBLIC
 SCHOOL BECAUSE OF AFFINITY FOR OR ANIMUS AGAINST A RACE,  CREED,  COLOR,
 NATIONAL ORIGIN, SEX, MARITAL STATUS, SEXUAL ORIENTATION, GENDER IDENTI-
 TY  OR EXPRESSION, OR DISABILITY, AS SUCH TERM IS DEFINED IN SECTION TWO
 HUNDRED NINETY-TWO OF THE EXECUTIVE LAW.
   6. THE NOTICE OF EMPLOYMENT OPPORTUNITY FOR  A  CERTIFICATED  POSITION
 LOCATED IN SUBDIVISION ONE OF THIS SECTION SHALL BE DEEMED A CIVIL RIGHT
 FOR  PERSONS  WHO HOLD THE REQUISITE CERTIFICATION, ACCORDING TO COMMIS-
 SIONER REGULATIONS, FOR THE CERTIFICATED POSITION.
   7. PERSONS APPOINTED TO CERTIFICATED POSITIONS OUTSIDE OF THE REQUIRE-
 MENTS SET FORTH IN THIS SECTION SHALL BE UNQUALIFIED FOR  THE  APPOINTED
 CERTIFICATED POSITION FOR ALL PURPOSES OF THIS CHAPTER.
   §  4.  Section  3009  of  the education law is amended by adding a new
 subdivision 3 to read as follows:
   3. AS USED IN THIS SECTION, "TEACHER" REFERS TO ANY PERSON EMPLOYED IN
 A POSITION REQUIRING A CERTIFICATE FROM THE OFFICE OF TEACHING.
   § 5. The education law is amended by adding a new section 3039 to read
 as follows:
   § 3039. DISCRIMINATION BASED ON  AFFINITY  FOR  OR  ANIMUS  AGAINST  A
 PROTECTED  CLASS  IS PROHIBITED. NOTWITHSTANDING ANY PROVISION OF LAW TO
 THE CONTRARY, NO BOARD OF EDUCATION IN ANY CITY, UNION FREE,  COMMON  OR
 CENTRAL SCHOOL DISTRICT IN THIS STATE SHALL HEREAFTER PROHIBIT, PREVENT,
 DISQUALIFY  OR  DISCRIMINATE  AGAINST  ANY  PERSON WHO IS PHYSICALLY AND
 MENTALLY QUALIFIED FROM COMPETING, PARTICIPATING, OR REGISTERING FOR  AN
 EXAMINATION  FOR  OR FROM QUALIFYING FOR, A POSITION LICENSED OR CERTIF-
 ICATED BY THE DEPARTMENT, OR BE EXCLUDED FROM AND DENIED  EQUAL  EMPLOY-
 MENT OPPORTUNITY, OR PENALIZED IN A FINAL RATING BY REASON OF HIS OR HER
 MEMBERSHIP  IN A PROTECTED CLASS OR RETALIATION AFTER HE OR SHE FORMALLY
 ALLEGED DISCRIMINATION. ANY SUCH RULE,  REQUIREMENT,  RESOLUTION,  REGU-
 LATION,  PENALIZATION,  EXCLUSION, DENIAL, DISCRIMINATION OR RETALIATION
 OF SUCH BOARD OR ITS EMPLOYEES SHALL BE VOID. NOTHING CONTAINED IN  THIS
 SECTION  SHALL  PREVENT SUCH BOARD FROM ADOPTING REASONABLE REQUIREMENTS
 FOR POSITIONS, EXCEPT WHERE SUCH REQUIREMENTS  FOR  SUCH  POSITIONS  ARE
 ALREADY LIMITED AND PRESCRIBED BY LAW.
   § 6. This act shall take effect immediately.