Senate Bill S2440B

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2440
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 20, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee  on  Investigations  and
   Government Operations
 
 AN  ACT to amend the executive law, in relation to prohibiting discrimi-
   nation on the basis of a person's height or weight in opportunities of
   employment, housing, and access to public accommodations
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraphs (a), (b), (c), (d) and (h) of subdivision 1 of
 section 296 of the executive law, as separately amended by chapters  202
 and 748 of the laws of 2022, are amended to read as follows:
   (a)  For  an  employer or licensing agency, because of an individual's
 age, race, creed, color, national  origin,  citizenship  or  immigration
 status,  sexual  orientation,  gender  identity  or expression, military
 status, sex, HEIGHT, WEIGHT, disability, predisposing genetic character-
 istics, familial status, marital status, or status as a victim of domes-
 tic violence, to refuse to hire or employ or to bar or to discharge from
 employment such individual or to discriminate against such individual in
 compensation or in terms, conditions or privileges of employment.
   (b) For an employment agency to discriminate  against  any  individual
 because  of  age,  race,  creed,  color, national origin, citizenship or
 immigration status, sexual orientation, gender identity  or  expression,
 military  status,  sex, HEIGHT, WEIGHT, disability, predisposing genetic
 characteristics, familial status, marital status, or status as a  victim
 of  domestic violence, in receiving, classifying, disposing or otherwise
 acting upon applications for its services or in referring  an  applicant
 or applicants to an employer or employers.
   (c)  For a labor organization, because of the age, race, creed, color,
 national origin, citizenship or immigration status, sexual  orientation,
 gender  identity  or  expression,  military status, sex, HEIGHT, WEIGHT,
 disability, predisposing genetic characteristics, familial status, mari-
 tal status, or status as a victim of domestic violence, of any  individ-
 ual,  to  exclude  or to expel from its membership such individual or to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD06818-01-3
 S. 2440                             2
 
 discriminate in any way against  any  of  its  members  or  against  any
 employer or any individual employed by an employer.
   (d)  For  any  employer  or employment agency to print or circulate or
 cause to be printed or circulated any statement, advertisement or publi-
 cation, or to use any form of application for employment or to make  any
 inquiry  in  connection  with  prospective  employment,  which expresses
 directly or indirectly, any limitation, specification or  discrimination
 as  to  age,  race,  creed, color, national origin, citizenship or immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary status, sex, HEIGHT, WEIGHT, disability, predisposing genetic char-
 acteristics, familial status, marital status, or status as a  victim  of
 domestic violence, or any intent to make any such limitation, specifica-
 tion or discrimination, unless based upon a bona fide occupational qual-
 ification;  provided,  however,  that  neither  this  paragraph  nor any
 provision of this chapter or other law shall be  construed  to  prohibit
 the  department  of  civil service or the department of personnel of any
 city containing more than one county from  requesting  information  from
 applicants  for  civil service examinations concerning any of the afore-
 mentioned  characteristics,  other  than  sexual  orientation,  for  the
 purpose  of conducting studies to identify and resolve possible problems
 in recruitment and testing of members of minority groups to  ensure  the
 fairest  possible  and  equal  opportunities for employment in the civil
 service for all persons, regardless of age, race, creed, color, national
 origin, citizenship or immigration status, sexual orientation or  gender
 identity  or expression, military status, sex, HEIGHT, WEIGHT, disabili-
 ty, predisposing genetic characteristics, familial  status,  or  marital
 status.
   (h)  For  an  employer,  licensing  agency, employment agency or labor
 organization to subject any individual to harassment because of an indi-
 vidual's age, race, creed, color, national origin, citizenship or  immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary  status,  sex,  HEIGHT,  WEIGHT,  disability,  predisposing genetic
 characteristics, familial status, marital status, status as a victim  of
 domestic  violence,  or because the individual has opposed any practices
 forbidden under this article or  because  the  individual  has  filed  a
 complaint,  testified  or assisted in any proceeding under this article,
 regardless of whether such harassment  would  be  considered  severe  or
 pervasive  under precedent applied to harassment claims. Such harassment
 is an unlawful discriminatory practice when it subjects an individual to
 inferior terms, conditions or privileges of employment  because  of  the
 individual's  membership  in  one or more of these protected categories.
 The fact that such individual did not make a complaint about the harass-
 ment to such employer, licensing  agency,  employment  agency  or  labor
 organization  shall  not  be  determinative  of  whether  such employer,
 licensing agency, employment  agency  or  labor  organization  shall  be
 liable. Nothing in this section shall imply that an employee must demon-
 strate  the  existence of an individual to whom the employee's treatment
 must be compared. It shall be an affirmative defense to liability  under
 this  subdivision  that  the  harassing  conduct does not rise above the
 level of what a  reasonable  victim  of  discrimination  with  the  same
 protected characteristic or characteristics would consider petty slights
 or trivial inconveniences.
   §  2. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296 of
 the executive law, as separately amended by chapters 202 and 748 of  the
 laws of 2022, are amended to read as follows:
 S. 2440                             3
 
   (b)  To  deny  to  or withhold from any person because of race, creed,
 color, national origin, citizenship or immigration status, sexual orien-
 tation, gender identity or expression,  military  status,  sex,  HEIGHT,
 WEIGHT, age, disability, familial status, marital status, or status as a
 victim  of domestic violence, the right to be admitted to or participate
 in a guidance program, an apprenticeship  training  program,  on-the-job
 training  program,  executive  training  program,  or other occupational
 training or retraining program;
   (c) To discriminate against any person in his or her pursuit  of  such
 programs  or  to discriminate against such a person in the terms, condi-
 tions or privileges of such programs  because  of  race,  creed,  color,
 national  origin, citizenship or immigration status, sexual orientation,
 gender identity or expression, military  status,  sex,  HEIGHT,  WEIGHT,
 age,  disability, familial status, marital status, or status as a victim
 of domestic violence;
   (d) To print or circulate or cause to be  printed  or  circulated  any
 statement,  advertisement or publication, or to use any form of applica-
 tion for such programs or to make any inquiry in  connection  with  such
 program  which  expresses, directly or indirectly, any limitation, spec-
 ification or discrimination as to race, creed, color,  national  origin,
 citizenship  or  immigration status, sexual orientation, gender identity
 or expression, military status, sex, HEIGHT,  WEIGHT,  age,  disability,
 familial  status,  marital  status,  or  status  as a victim of domestic
 violence, or any intention to make any such limitation, specification or
 discrimination, unless based on a bona fide occupational qualification.
   § 3. Paragraphs (a) and (b) of subdivision 2 of  section  296  of  the
 executive  law,  paragraph (a) as separately amended by chapters 202 and
 748 of the laws of 2022 and paragraph (b) as amended by chapter  166  of
 the laws of 2000, are amended to read as follows:
   (a)  It  shall  be an unlawful discriminatory practice for any person,
 being the owner, lessee, proprietor, manager, superintendent,  agent  or
 employee  of  any  place  of  public accommodation, resort or amusement,
 because of the race, creed, color, national origin, citizenship or immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary status, sex, HEIGHT, WEIGHT, disability, marital status, or  status
 as a victim of domestic violence, of any person, directly or indirectly,
 to  refuse,  withhold  from  or  deny to such person any of the accommo-
 dations, advantages, facilities or  privileges  thereof,  including  the
 extension  of credit, or, directly or indirectly, to publish, circulate,
 issue, display, post or  mail  any  written  or  printed  communication,
 notice  or  advertisement, to the effect that any of the accommodations,
 advantages, facilities  and  privileges  of  any  such  place  shall  be
 refused,  withheld  from  or  denied  to  any person on account of race,
 creed, color, national origin, citizenship or immigration status, sexual
 orientation,  gender  identity  or  expression,  military  status,  sex,
 HEIGHT,  WEIGHT,  disability or marital status, or that the patronage or
 custom thereat of any person of or purporting to be  of  any  particular
 race,  creed, color, national origin, citizenship or immigration status,
 sexual orientation, gender identity or expression, military status,  sex
 or marital status, or having a disability is unwelcome, objectionable or
 not acceptable, desired or solicited.
   (b)  Nothing  in  this  subdivision  shall be construed to prevent the
 barring of any person, because of the sex of such person, from places of
 public accommodation, resort or amusement  if  the  division  grants  an
 exemption  based on bona fide considerations of public policy; nor shall
 this subdivision apply to the rental of rooms in a housing accommodation
 S. 2440                             4
 
 which restricts such rental to individuals of one sex.  NOTHING IN  THIS
 SUBDIVISION  SHALL  BE  CONSTRUED  TO PREVENT THE BARRING OF ANY PERSON,
 BECAUSE OF HEIGHT OR WEIGHT OF SUCH PERSON, FROM PLACES OF AMUSEMENT FOR
 PURPOSES OF COMPLIANCE WITH ANY ESTABLISHED STATE, FEDERAL, OR AMUSEMENT
 INDUSTRY SAFETY STANDARD.
   §  4. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section
 296 of the executive law, as separately amended by chapters 202 and  748
 of the laws of 2022, are amended to read as follows:
   (a)  To refuse to sell, rent or lease or otherwise to deny to or with-
 hold from any person or group of  persons  such  housing  accommodations
 because of the race, creed, color, disability, national origin, citizen-
 ship  or  immigration  status,  sexual  orientation,  gender identity or
 expression, military status, age, sex, HEIGHT, WEIGHT,  marital  status,
 status  as  a  victim  of  domestic violence, lawful source of income or
 familial status of such person or persons,  or  to  represent  that  any
 housing  accommodation  or  land  is not available for inspection, sale,
 rental or lease when in fact it is so available.
   (b) To discriminate against any person because of  his  or  her  race,
 creed,  color,  disability,  national origin, citizenship or immigration
 status, sexual orientation,  gender  identity  or  expression,  military
 status,  age, sex, HEIGHT, WEIGHT, marital status, status as a victim of
 domestic violence, lawful source of income or  familial  status  in  the
 terms,  conditions or privileges of any publicly-assisted housing accom-
 modations or in the furnishing of facilities or services  in  connection
 therewith.
   (c) To cause to be made any written or oral inquiry or record concern-
 ing  the race, creed, color, disability, national origin, citizenship or
 immigration status, sexual orientation, gender identity  or  expression,
 membership  in  the  reserve armed forces of the United States or in the
 organized militia of  the  state,  age,  sex,  HEIGHT,  WEIGHT,  marital
 status, status as a victim of domestic violence, lawful source of income
 or familial status of a person seeking to rent or lease any publicly-as-
 sisted  housing  accommodation;  provided, however, that nothing in this
 subdivision shall prohibit a member of the reserve armed forces  of  the
 United  States or in the organized militia of the state from voluntarily
 disclosing such membership.
   (c-1) To print or circulate or cause to be printed or  circulated  any
 statement,  advertisement or publication, or to use any form of applica-
 tion for the purchase, rental or lease of such housing accommodation  or
 to  make  any  record  or  inquiry  in  connection  with the prospective
 purchase,  rental  or  lease  of  such  a  housing  accommodation  which
 expresses,  directly  or  indirectly,  any  limitation, specification or
 discrimination as to race, creed, color, national origin, citizenship or
 immigration status, sexual orientation, gender identity  or  expression,
 military  status,  sex, HEIGHT, WEIGHT, age, disability, marital status,
 status as a victim of domestic violence,  lawful  source  of  income  or
 familial  status,  or any intent to make any such limitation, specifica-
 tion or discrimination.
   § 5. Subdivisions 3-b, 4 and 13 of section 296 of the  executive  law,
 as  separately  amended by chapters 202 and 748 of the laws of 2022, are
 amended to read as follows:
   3-b. It shall be an unlawful  discriminatory  practice  for  any  real
 estate  broker,  real estate salesperson or employee or agent thereof or
 any other individual, corporation, partnership or organization  for  the
 purpose of inducing a real estate transaction from which any such person
 or any of its stockholders or members may benefit financially, to repre-
 S. 2440                             5
 
 sent  that a change has occurred or will or may occur in the composition
 with respect to race, creed,  color,  national  origin,  citizenship  or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, sex, HEIGHT, WEIGHT, disability, marital status, status
 as  a  victim  of domestic violence, or familial status of the owners or
 occupants in the block, neighborhood or area in which the real  property
 is  located,  and to represent, directly or indirectly, that this change
 will or may result in undesirable consequences in the  block,  neighbor-
 hood  or  area  in which the real property is located, including but not
 limited to the lowering of property values, an increase in  criminal  or
 anti-social  behavior,  or  a decline in the quality of schools or other
 facilities.
   4. It shall be an unlawful discriminatory practice for an  educational
 institution  to  deny  the use of its facilities to any person otherwise
 qualified, or to permit the harassment of any student or  applicant,  by
 reason  of his race, color, religion, disability, national origin, citi-
 zenship or immigration status, sexual orientation,  gender  identity  or
 expression,  military  status, sex, HEIGHT, WEIGHT, age, marital status,
 or status as a victim of domestic violence, except that any such  insti-
 tution  which  establishes or maintains a policy of educating persons of
 one sex exclusively may admit students of only one sex.
   13. It shall be an unlawful discriminatory practice (i) for any person
 to boycott or blacklist, or to refuse to buy  from,  sell  to  or  trade
 with, or otherwise discriminate against any person, because of the race,
 creed, color, national origin, citizenship or immigration status, sexual
 orientation,  gender  identity  or  expression,  military  status,  sex,
 HEIGHT, WEIGHT, status as a victim of domestic violence, disability,  or
 familial  status,  or  of  such  person,  or  of such person's partners,
 members, stockholders, directors, officers,  managers,  superintendents,
 agents,  employees, business associates, suppliers or customers, or (ii)
 for any person wilfully to do any act or  refrain  from  doing  any  act
 which  enables  any  such  person  to take such action. This subdivision
 shall not apply to:
   (a) Boycotts connected with labor disputes; or
   (b) Boycotts to protest unlawful discriminatory practices.
   § 6. Paragraphs (a), (b), (c) and (d) of subdivision 5 of section  296
 of  the  executive law, as separately amended by chapters 202 and 748 of
 the laws of 2022, are amended to read as follows:
   (a) It shall be an unlawful discriminatory  practice  for  the  owner,
 lessee,  sub-lessee,  assignee,  or  managing  agent of, or other person
 having the right  to  sell,  rent  or  lease  a  housing  accommodation,
 constructed or to be constructed, or any agent or employee thereof:
   (1) To refuse to sell, rent, lease or otherwise to deny to or withhold
 from any person or group of persons such a housing accommodation because
 of  the  race, creed, color, national origin, citizenship or immigration
 status, sexual orientation,  gender  identity  or  expression,  military
 status,  sex, HEIGHT, WEIGHT, age, disability, marital status, status as
 a victim of domestic violence,  lawful  source  of  income  or  familial
 status  of  such  person  or  persons,  or to represent that any housing
 accommodation or land is not available for inspection, sale,  rental  or
 lease when in fact it is so available.
   (2)  To discriminate against any person because of race, creed, color,
 national origin, citizenship or immigration status, sexual  orientation,
 gender  identity  or  expression,  military status, sex, HEIGHT, WEIGHT,
 age,  disability,  marital  status,  status  as  a  victim  of  domestic
 violence,  lawful  source  of  income  or  familial status in the terms,
 S. 2440                             6
 
 conditions or privileges of the sale, rental or lease of any such  hous-
 ing  accommodation  or  in  the  furnishing of facilities or services in
 connection therewith.
   (3)  To  print  or  circulate or cause to be printed or circulated any
 statement, advertisement or publication, or to use any form of  applica-
 tion  for the purchase, rental or lease of such housing accommodation or
 to make any  record  or  inquiry  in  connection  with  the  prospective
 purchase,  rental  or  lease  of  such  a  housing  accommodation  which
 expresses, directly or  indirectly,  any  limitation,  specification  or
 discrimination as to race, creed, color, national origin, citizenship or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, sex, HEIGHT, WEIGHT, age, disability,  marital  status,
 status  as  a  victim  of  domestic violence, lawful source of income or
 familial status, or any intent to make any such  limitation,  specifica-
 tion or discrimination.
   (4)  (i) The provisions of subparagraphs one and two of this paragraph
 shall not apply (1) to the rental of a housing accommodation in a build-
 ing which contains housing accommodations for not more than two families
 living independently of each other, if the owner resides in one of  such
 housing  accommodations,  (2)  to  the  restriction of the rental of all
 rooms in a housing accommodation to individuals of the same sex  or  (3)
 to  the  rental  of  a room or rooms in a housing accommodation, if such
 rental is by the occupant of the housing accommodation or by  the  owner
 of  the  housing  accommodation  and  the  owner resides in such housing
 accommodation or (4) solely with respect to age and familial  status  to
 the  restriction  of the sale, rental or lease of housing accommodations
 exclusively to persons sixty-two years of age or older and the spouse of
 any such person, or for housing intended and operated for  occupancy  by
 at least one person fifty-five years of age or older per unit. In deter-
 mining whether housing is intended and operated for occupancy by persons
 fifty-five  years  of age or older, Sec. 807(b) (2) (c) (42 U.S.C.  3607
 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended,  shall
 apply.  However, such rental property shall no longer be exempt from the
 provisions of subparagraphs one and two of this paragraph  if  there  is
 unlawful  discriminatory  conduct pursuant to subparagraph three of this
 paragraph.
   (ii) The provisions of subparagraphs one, two, and three of this para-
 graph shall not apply (1) to the restriction of the rental of all  rooms
 in  a  housing  accommodation to individuals of the same sex, (2) to the
 rental of a room or rooms in a housing accommodation, if such rental  is
 by  the  occupant  of  the  housing accommodation or by the owner of the
 housing accommodation and the owner resides  in  such  housing  accommo-
 dation,  or  (3)  solely  with respect to age and familial status to the
 restriction of the sale,  rental  or  lease  of  housing  accommodations
 exclusively to persons sixty-two years of age or older and the spouse of
 any  such  person, or for housing intended and operated for occupancy by
 at least one person fifty-five years of age or older per unit. In deter-
 mining whether housing is intended and operated for occupancy by persons
 fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C.    3607
 (b)  (2) (c)) of the federal Fair Housing Act of 1988, as amended, shall
 apply.
   (b) It shall be an unlawful discriminatory  practice  for  the  owner,
 lessee,  sub-lessee,  or  managing  agent of, or other person having the
 right of ownership or possession of or the right to sell, rent or lease,
 land or commercial space:
 S. 2440                             7
 
   (1) To refuse to sell, rent, lease or otherwise deny  to  or  withhold
 from  any person or group of persons land or commercial space because of
 the race, creed, color,  national  origin,  citizenship  or  immigration
 status,  sexual  orientation,  gender  identity  or expression, military
 status,  sex, HEIGHT, WEIGHT, age, disability, marital status, status as
 a victim of domestic violence, or familial  status  of  such  person  or
 persons,  or  to represent that any housing accommodation or land is not
 available for inspection, sale, rental or lease when in fact  it  is  so
 available;
   (2)  To discriminate against any person because of race, creed, color,
 national origin, citizenship or immigration status, sexual  orientation,
 gender  identity  or  expression,  military status, sex, HEIGHT, WEIGHT,
 age,  disability,  marital  status,  status  as  a  victim  of  domestic
 violence,  or  familial status in the terms, conditions or privileges of
 the sale, rental or lease of any such land or commercial  space;  or  in
 the furnishing of facilities or services in connection therewith;
   (3)  To  print  or  circulate or cause to be printed or circulated any
 statement, advertisement or publication, or to use any form of  applica-
 tion  for the purchase, rental or lease of such land or commercial space
 or to make any record or inquiry  in  connection  with  the  prospective
 purchase,  rental  or  lease  of  such  land  or  commercial space which
 expresses, directly or  indirectly,  any  limitation,  specification  or
 discrimination as to race, creed, color, national origin, citizenship or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, sex, HEIGHT, WEIGHT, age, disability,  marital  status,
 status  as  a  victim  of  domestic violence, or familial status; or any
 intent to make any such limitation, specification or discrimination.
   (4) With respect to age and familial status, the  provisions  of  this
 paragraph  shall  not  apply  to  the restriction of the sale, rental or
 lease of land or commercial  space  exclusively  to  persons  fifty-five
 years  of  age  or  older  and  the spouse of any such person, or to the
 restriction of the sale, rental or lease of land  to  be  used  for  the
 construction,  or  location  of  housing  accommodations exclusively for
 persons sixty-two years of age or older, or intended  and  operated  for
 occupancy  by  at  least one person fifty-five years of age or older per
 unit. In determining whether housing is intended and operated for  occu-
 pancy  by  persons fifty-five years of age or older, Sec. 807(b) (2) (c)
 (42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988,  as
 amended, shall apply.
   (c)  It  shall  be  an  unlawful  discriminatory practice for any real
 estate broker, real estate salesperson or employee or agent thereof:
   (1) To refuse to sell, rent or lease any housing  accommodation,  land
 or  commercial  space  to any person or group of persons or to refuse to
 negotiate for the sale, rental or lease, of any  housing  accommodation,
 land  or  commercial  space to any person or group of persons because of
 the race, creed, color,  national  origin,  citizenship  or  immigration
 status,  sexual  orientation,  gender  identity  or expression, military
 status, sex, HEIGHT, WEIGHT, age, disability, marital status, status  as
 a  victim  of  domestic  violence,  lawful  source of income or familial
 status of such person or persons,  or  to  represent  that  any  housing
 accommodation, land or commercial space is not available for inspection,
 sale,  rental  or lease when in fact it is so available, or otherwise to
 deny or withhold any housing accommodation, land or commercial space  or
 any  facilities  of  any housing accommodation, land or commercial space
 from any person or group of persons because of the race,  creed,  color,
 national  origin, citizenship or immigration status, sexual orientation,
 S. 2440                             8
 
 gender identity or expression, military  status,  sex,  HEIGHT,  WEIGHT,
 age,  disability,  marital  status,  lawful source of income or familial
 status of such person or persons.
   (2)  To  print  or  circulate or cause to be printed or circulated any
 statement, advertisement or publication, or to use any form of  applica-
 tion  for  the  purchase,  rental or lease of any housing accommodation,
 land or commercial space or to make any record or inquiry in  connection
 with  the  prospective purchase, rental or lease of any housing accommo-
 dation, land or commercial space which expresses, directly or  indirect-
 ly,  any limitation, specification, or discrimination as to race, creed,
 color, national origin, citizenship or immigration status, sexual orien-
 tation, gender identity or expression,  military  status,  sex,  HEIGHT,
 WEIGHT,  age, disability, marital status, status as a victim of domestic
 violence, lawful source of income or familial status; or any  intent  to
 make any such limitation, specification or discrimination.
   (3)  With  respect  to age and familial status, the provisions of this
 paragraph shall not apply to the restriction  of  the  sale,  rental  or
 lease of any housing accommodation, land or commercial space exclusively
 to  persons  fifty-five years of age or older and the spouse of any such
 person, or to the restriction of the sale, rental or lease of any  hous-
 ing accommodation or land to be used for the construction or location of
 housing  accommodations  for persons sixty-two years of age or older, or
 intended and operated for occupancy by at least  one  person  fifty-five
 years  of  age  or  older  per  unit.  In determining whether housing is
 intended and operated for occupancy by persons fifty-five years  of  age
 or  older,  Sec.  807  (b)  (2)  (c) (42 U.S.C. 3607 (b) (2) (c)) of the
 federal Fair Housing Act of 1988, as amended, shall apply.
   (d) It shall be an  unlawful  discriminatory  practice  for  any  real
 estate  board, because of the race, creed, color, national origin, citi-
 zenship or immigration status, sexual orientation,  gender  identity  or
 expression, military status, age, sex, HEIGHT, WEIGHT, disability, mari-
 tal  status,  status  as a victim of domestic violence, lawful source of
 income or familial status of any individual who is  otherwise  qualified
 for  membership, to exclude or expel such individual from membership, or
 to discriminate against such individual in  the  terms,  conditions  and
 privileges of membership in such board.
   § 7. Subdivisions 1, 2 and 3 of section 296-a of the executive law, as
 separately  amended  by  chapters  202  and 748 of the laws of 2022, are
 amended to read as follows:
   1. It shall be an unlawful discriminatory practice for any creditor or
 any officer, agent or employee thereof:
   a. In the  case  of  applications  for  credit  with  respect  to  the
 purchase,  acquisition,  construction, rehabilitation, repair or mainte-
 nance of any housing accommodation, land or commercial space to discrim-
 inate against any such applicant because  of  the  race,  creed,  color,
 national  origin, citizenship or immigration status, sexual orientation,
 gender identity  or  expression,  military  status,  age,  sex,  HEIGHT,
 WEIGHT,  marital  status, status as a victim of domestic violence, disa-
 bility, or familial status  of  such  applicant  or  applicants  or  any
 member,  stockholder, director, officer or employee of such applicant or
 applicants, or of the prospective occupants or tenants of  such  housing
 accommodation,  land  or commercial space, in the granting, withholding,
 extending or renewing, or in the fixing of the rates,  terms  or  condi-
 tions of, any such credit;
   b.  To  discriminate in the granting, withholding, extending or renew-
 ing, or in the fixing of the rates, terms or conditions of, any form  of
 S. 2440                             9
 
 credit, on the basis of race, creed, color, national origin, citizenship
 or   immigration   status,   sexual   orientation,  gender  identity  or
 expression, military status, age, sex, HEIGHT, WEIGHT,  marital  status,
 status as a victim of domestic violence, disability, or familial status;
   c. To use any form of application for credit or use or make any record
 or  inquiry  which  expresses,  directly  or indirectly, any limitation,
 specification, or discrimination as  to  race,  creed,  color,  national
 origin,  citizenship  or  immigration status, sexual orientation, gender
 identity or expression, military status, age, sex, HEIGHT, WEIGHT, mari-
 tal status, status as a victim  of  domestic  violence,  disability,  or
 familial status;
   d.  To make any inquiry of an applicant concerning his or her capacity
 to reproduce, or his or her use or advocacy of any form of birth control
 or family planning;
   e. To refuse to consider  sources  of  an  applicant's  income  or  to
 subject  an  applicant's  income  to  discounting,  in whole or in part,
 because of an applicant's race, creed, color, national origin,  citizen-
 ship  or  immigration  status,  sexual  orientation,  gender identity or
 expression, military status, age, sex, HEIGHT, WEIGHT,  marital  status,
 status  as  a victim of domestic violence, childbearing potential, disa-
 bility, or familial status;
   f. To discriminate  against  a  married  person  because  such  person
 neither uses nor is known by the surname of his or her spouse.
   This  paragraph  shall  not  apply to any situation where the use of a
 surname would constitute or result in a criminal act.
   2. Without limiting the generality of subdivision one of this section,
 it shall be considered discriminatory if, because of an  applicant's  or
 class of applicants' race, creed, color, national origin, citizenship or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, age, sex, HEIGHT, WEIGHT, marital status, status  as  a
 victim  of  domestic  violence,  disability,  or familial status, (i) an
 applicant or class of applicants is denied credit in circumstances where
 other applicants of like overall credit worthiness are  granted  credit,
 or  (ii)  special requirements or conditions, such as requiring co-obli-
 gors or reapplication upon marriage, are imposed upon  an  applicant  or
 class  of  applicants  in  circumstances  where  similar requirements or
 conditions are not imposed upon other applicants of like overall  credit
 worthiness.
   3.  It  shall  not  be  considered  discriminatory if credit differen-
 tiations or decisions are based upon  factually  supportable,  objective
 differences  in applicants' overall credit worthiness, which may include
 reference to such factors as current income,  assets  and  prior  credit
 history  of  such applicants, as well as reference to any other relevant
 factually supportable data; provided, however, that  no  creditor  shall
 consider, in evaluating the credit worthiness of an applicant, aggregate
 statistics  or  assumptions  relating  to  race,  creed, color, national
 origin, citizenship or immigration status,  sexual  orientation,  gender
 identity  or  expression,  military status, sex, HEIGHT, WEIGHT, marital
 status, status as a victim of domestic violence or disability, or to the
 likelihood of any group of persons bearing or rearing children,  or  for
 that reason receiving diminished or interrupted income in the future.
   §  8. Paragraphs a, b and c of subdivision 2 and paragraph b of subdi-
 vision 3 of section 296-c of the executive law, as separately amended by
 chapters 202 and 748 of the  laws  of  2022,  are  amended  to  read  as
 follows:
 S. 2440                            10
 
   a.  refuse to hire or employ or to bar or to discharge from internship
 an intern or to discriminate against such intern in terms, conditions or
 privileges of employment as an intern because of the intern's age, race,
 creed, color, national origin, citizenship or immigration status, sexual
 orientation,  military  status, sex, HEIGHT, WEIGHT, disability, predis-
 posing genetic characteristics, marital status, or status as a victim of
 domestic violence;
   b. discriminate against an intern in receiving, classifying, disposing
 or otherwise acting upon applications for  internships  because  of  the
 intern's  age, race, creed, color, national origin, citizenship or immi-
 gration  status,  sexual  orientation,  military  status,  sex,  HEIGHT,
 WEIGHT,   disability,   predisposing  genetic  characteristics,  marital
 status, or status as a victim of domestic violence;
   c. print or circulate or cause to be printed or circulated any  state-
 ment,  advertisement  or  publication, or to use any form of application
 for employment as an intern or to make any inquiry  in  connection  with
 prospective  employment,  which  expresses  directly  or indirectly, any
 limitation, specification or discrimination  as  to  age,  race,  creed,
 color, national origin, citizenship or immigration status, sexual orien-
 tation,  military  status, sex, HEIGHT, WEIGHT, disability, predisposing
 genetic characteristics, marital status or status as a victim of  domes-
 tic  violence,  or any intent to make any such limitation, specification
 or discrimination, unless based upon a bona fide occupational qualifica-
 tion; provided, however, that neither this paragraph nor  any  provision
 of  this chapter or other law shall be construed to prohibit the depart-
 ment of civil service  or  the  department  of  personnel  of  any  city
 containing  more than one county from requesting information from appli-
 cants for civil service internships or examinations  concerning  any  of
 the  aforementioned  characteristics, other than sexual orientation, for
 the purpose of conducting studies to identify and resolve possible prob-
 lems in recruitment and testing of members of minority groups to  ensure
 the fairest possible and equal opportunities for employment in the civil
 service for all persons, regardless of age, race, creed, color, national
 origin,  citizenship or immigration status, sexual orientation, military
 status, sex, HEIGHT, WEIGHT, disability, predisposing genetic character-
 istics, marital status or status as a victim of domestic violence;
   b. subject an intern  to  unwelcome  harassment  based  on  age,  sex,
 HEIGHT, WEIGHT, race, creed, color, sexual orientation, military status,
 disability, predisposing genetic characteristics, marital status, status
 as  a  victim  of  domestic violence, national origin, or citizenship or
 immigration status, or where such harassment has the purpose  or  effect
 of unreasonably interfering with the intern's work performance by creat-
 ing an intimidating, hostile, or offensive working environment.
   §  9.  This  act shall not annul, alter, affect or exempt any employer
 subject to the provisions of this act  from  complying  with  the  laws,
 ordinances,  rules  or regulations of any locality, except to the extent
 that such laws, ordinances, rules or regulations are  inconsistent  with
 any  provision  of  this  act, but no such law, ordinance, rule or regu-
 lation shall be considered inconsistent if it affords equal  or  greater
 protection to the employee.
   §  10.  This  act  shall  take effect on the one hundred eightieth day
 after it shall have become a law. Effective immediately,  the  addition,
 amendment  and/or  repeal  of  any  rule or regulation necessary for the
 implementation of this act on its effective date are  authorized  to  be
 made and completed on or before such effective date.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2440--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 20, 2023
                                ___________
 
 Introduced  by  Sens.  HOYLMAN-SIGAL,  KRUEGER -- read twice and ordered
   printed, and when printed to be committed to the Committee on Investi-
   gations  and  Government  Operations  --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee

 AN ACT to amend the executive law, in relation to prohibiting  discrimi-
   nation on the basis of a person's height or weight in opportunities of
   employment, housing, and access to public accommodations
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraphs (a), (b), (c), (d) and (h) of subdivision  1  of
 section  296 of the executive law, as separately amended by chapters 202
 and 748 of the laws of 2022, are amended to read as follows:
   (a) For an employer or licensing agency, because  of  an  individual's
 age,  race,  creed,  color,  national origin, citizenship or immigration
 status, sexual orientation,  gender  identity  or  expression,  military
 status, sex, HEIGHT, WEIGHT, disability, predisposing genetic character-
 istics, familial status, marital status, or status as a victim of domes-
 tic violence, to refuse to hire or employ or to bar or to discharge from
 employment such individual or to discriminate against such individual in
 compensation or in terms, conditions or privileges of employment.
   (b)  For  an  employment agency to discriminate against any individual
 because of age, race, creed,  color,  national  origin,  citizenship  or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, sex, HEIGHT, WEIGHT, disability,  predisposing  genetic
 characteristics,  familial status, marital status, or status as a victim
 of domestic violence, in receiving, classifying, disposing or  otherwise
 acting  upon  applications for its services or in referring an applicant
 or applicants to an employer or employers.
   (c) For a labor organization, because of the age, race, creed,  color,
 national  origin, citizenship or immigration status, sexual orientation,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06818-02-3
              

 S. 2440--A                          2
 
 gender identity or expression, military  status,  sex,  HEIGHT,  WEIGHT,
 disability, predisposing genetic characteristics, familial status, mari-
 tal  status, or status as a victim of domestic violence, of any individ-
 ual,  to  exclude  or to expel from its membership such individual or to
 discriminate in any way against  any  of  its  members  or  against  any
 employer or any individual employed by an employer.
   (d)  For  any  employer  or employment agency to print or circulate or
 cause to be printed or circulated any statement, advertisement or publi-
 cation, or to use any form of application for employment or to make  any
 inquiry  in  connection  with  prospective  employment,  which expresses
 directly or indirectly, any limitation, specification or  discrimination
 as  to  age,  race,  creed, color, national origin, citizenship or immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary status, sex, HEIGHT, WEIGHT, disability, predisposing genetic char-
 acteristics, familial status, marital status, or status as a  victim  of
 domestic violence, or any intent to make any such limitation, specifica-
 tion or discrimination, unless based upon a bona fide occupational qual-
 ification;  provided,  however,  that  neither  this  paragraph  nor any
 provision of this chapter or other law shall be  construed  to  prohibit
 the  department  of  civil service or the department of personnel of any
 city containing more than one county from  requesting  information  from
 applicants  for  civil service examinations concerning any of the afore-
 mentioned  characteristics,  other  than  sexual  orientation,  for  the
 purpose  of conducting studies to identify and resolve possible problems
 in recruitment and testing of members of minority groups to  ensure  the
 fairest  possible  and  equal  opportunities for employment in the civil
 service for all persons, regardless of age, race, creed, color, national
 origin, citizenship or immigration status, sexual orientation or  gender
 identity  or expression, military status, sex, HEIGHT, WEIGHT, disabili-
 ty, predisposing genetic characteristics, familial  status,  or  marital
 status.
   (h)  (1) For an employer, licensing agency, employment agency or labor
 organization to subject any individual to harassment because of an indi-
 vidual's age, race, creed, color, national origin, citizenship or  immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary  status,  sex,  HEIGHT,  WEIGHT,  disability,  predisposing genetic
 characteristics, familial status, marital status, status as a victim  of
 domestic  violence,  or because the individual has opposed any practices
 forbidden under this article or  because  the  individual  has  filed  a
 complaint,  testified  or assisted in any proceeding under this article,
 regardless of whether such harassment  would  be  considered  severe  or
 pervasive  under precedent applied to harassment claims. Such harassment
 is an unlawful discriminatory practice when it subjects an individual to
 inferior terms, conditions or privileges of employment  because  of  the
 individual's  membership  in  one or more of these protected categories.
 The fact that such individual did not make a complaint about the harass-
 ment to such employer, licensing  agency,  employment  agency  or  labor
 organization  shall  not  be  determinative  of  whether  such employer,
 licensing agency, employment  agency  or  labor  organization  shall  be
 liable. Nothing in this section shall imply that an employee must demon-
 strate  the  existence of an individual to whom the employee's treatment
 must be compared. It shall be an affirmative defense to liability  under
 this  subdivision  that  the  harassing  conduct does not rise above the
 level of what a  reasonable  victim  of  discrimination  with  the  same
 protected characteristic or characteristics would consider petty slights
 or trivial inconveniences.
 S. 2440--A                          3
 
   (2)  THE  PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
 SHALL NOT APPLY TO AN ACTION BY AN EMPLOYER, LICENSING  AGENCY,  EMPLOY-
 MENT  AGENCY, OR LABOR ORGANIZATION BASED ON A PERSON'S HEIGHT OR WEIGHT
 WHEN SUCH ACTION IS REQUIRED OR PERMITTED BY FEDERAL,  STATE,  OR  LOCAL
 LAW  OR  REGULATION.  NOTHING  IN THIS SUBDIVISION SHALL BE CONSTRUED TO
 PREVENT ALTERNATIVE ACTIONS REASONABLY TAKEN BY AN  EMPLOYER,  LICENSING
 AGENCY, EMPLOYMENT AGENCY, OR LABOR ORGANIZATION TO ALLOW PERSONS WHO DO
 NOT MEET OCCUPATIONAL HEIGHT OR WEIGHT CRITERIA TO PERFORM THE ESSENTIAL
 REQUISITES  AND/OR NORMAL OPERATIONS OF A JOB, INCLUDING OFFERING INCEN-
 TIVES THAT SUPPORT WEIGHT MANAGEMENT AS PART  OF  A  VOLUNTARY  WELLNESS
 PROGRAM.  IN  INSTANCES  WHERE AN EMPLOYER, LICENSING AGENCY, EMPLOYMENT
 AGENCY, OR LABOR ORGANIZATION'S ACTION IS NOT REQUIRED BY LAW  OR  REGU-
 LATION OR PERMITTED BY LAW OR REGULATION AS DESCRIBED IN THIS PARAGRAPH,
 IT  SHALL  BE  AN  AFFIRMATIVE  DEFENSE THAT AN ACTION WAS TAKEN BECAUSE
 THERE WERE NO AVAILABLE ALTERNATIVE ACTIONS THE ENTITY COULD HAVE  TAKEN
 THAT  COULD  HAVE REASONABLY ALLOWED THE PERSON TO PERFORM THE ESSENTIAL
 REQUISITES AND/OR NORMAL OPERATIONS OF THE JOB.
   § 2. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296  of
 the  executive law, as separately amended by chapters 202 and 748 of the
 laws of 2022, are amended and a new paragraph (e) is added  to  read  as
 follows:
   (b)  To  deny  to  or withhold from any person because of race, creed,
 color, national origin, citizenship or immigration status, sexual orien-
 tation, gender identity or expression,  military  status,  sex,  HEIGHT,
 WEIGHT, age, disability, familial status, marital status, or status as a
 victim  of domestic violence, the right to be admitted to or participate
 in a guidance program, an apprenticeship  training  program,  on-the-job
 training  program,  executive  training  program,  or other occupational
 training or retraining program;
   (c) To discriminate against any person in his or her pursuit  of  such
 programs  or  to discriminate against such a person in the terms, condi-
 tions or privileges of such programs  because  of  race,  creed,  color,
 national  origin, citizenship or immigration status, sexual orientation,
 gender identity or expression, military  status,  sex,  HEIGHT,  WEIGHT,
 age,  disability, familial status, marital status, or status as a victim
 of domestic violence;
   (d) To print or circulate or cause to be  printed  or  circulated  any
 statement,  advertisement or publication, or to use any form of applica-
 tion for such programs or to make any inquiry in  connection  with  such
 program  which  expresses, directly or indirectly, any limitation, spec-
 ification or discrimination as to race, creed, color,  national  origin,
 citizenship  or  immigration status, sexual orientation, gender identity
 or expression, military status, sex, HEIGHT,  WEIGHT,  age,  disability,
 familial  status,  marital  status,  or  status  as a victim of domestic
 violence, or any intention to make any such limitation, specification or
 discrimination, unless based on a bona fide occupational qualification.
   (E) THE PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT  AND  WEIGHT
 SHALL NOT APPLY TO AN ACTION BY AN EMPLOYER, LABOR ORGANIZATION, EMPLOY-
 MENT  AGENCY OR ANY JOINT LABOR-MANAGEMENT COMMITTEE CONTROLLING APPREN-
 TICE TRAINING PROGRAMS BASED ON A PERSON'S HEIGHT OR  WEIGHT  WHEN  SUCH
 ACTION IS REQUIRED OR PERMITTED BY FEDERAL, STATE, OR LOCAL LAW OR REGU-
 LATION. NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO PREVENT ALTER-
 NATIVE  ACTIONS  REASONABLY  TAKEN  BY  AN EMPLOYER, LABOR ORGANIZATION,
 EMPLOYMENT AGENCY OR ANY JOINT  LABOR-MANAGEMENT  COMMITTEE  CONTROLLING
 APPRENTICE  TRAINING  PROGRAMS TO ALLOW PERSONS WHO DO NOT MEET PROGRAM-
 MATIC HEIGHT OR WEIGHT CRITERIA  TO  PERFORM  THE  ESSENTIAL  REQUISITES
 S. 2440--A                          4
 
 AND/OR NORMAL OPERATIONS OF A GUIDANCE PROGRAM, AN APPRENTICESHIP TRAIN-
 ING    PROGRAM,  ON-THE-JOB  TRAINING    PROGRAM,   EXECUTIVE   TRAINING
 PROGRAM, OR OTHER OCCUPATIONAL TRAINING OR RETRAINING PROGRAM, INCLUDING
 OFFERING  INCENTIVES  THAT SUPPORT WEIGHT MANAGEMENT AS PART OF A VOLUN-
 TARY WELLNESS PROGRAM. IN INSTANCES WHERE AN EMPLOYER,  LABOR  ORGANIZA-
 TION, EMPLOYMENT AGENCY OR ANY JOINT LABOR-MANAGEMENT COMMITTEE CONTROL-
 LING  APPRENTICE  TRAINING  PROGRAMS'  ACTION  IS NOT REQUIRED BY LAW OR
 REGULATION OR PERMITTED BY LAW OR REGULATION AS DESCRIBED IN THIS  PARA-
 GRAPH,  IT  SHALL  BE  AN  AFFIRMATIVE  DEFENSE THAT AN ACTION WAS TAKEN
 BECAUSE THERE WERE NO AVAILABLE ALTERNATIVE  ACTIONS  THE  ENTITY  COULD
 HAVE  TAKEN THAT COULD HAVE REASONABLY ALLOWED THE PERSON TO PERFORM THE
 ESSENTIAL REQUISITES AND/OR NORMAL OPERATIONS OF THE  GUIDANCE  PROGRAM,
 APPRENTICESHIP  TRAINING PROGRAM, ON-THE-JOB TRAINING PROGRAM, EXECUTIVE
 TRAINING  PROGRAM, OR OTHER OCCUPATIONAL TRAINING OR RETRAINING PROGRAM.
   § 3. Paragraphs (a) and (b) of subdivision 2 of  section  296  of  the
 executive  law,  paragraph (a) as separately amended by chapters 202 and
 748 of the laws of 2022 and paragraph (b) as amended by chapter  166  of
 the  laws  of 2000, are amended and a new paragraph (f) is added to read
 as follows:
   (a) It shall be an unlawful discriminatory practice  for  any  person,
 being  the  owner, lessee, proprietor, manager, superintendent, agent or
 employee of any place of  public  accommodation,  resort  or  amusement,
 because of the race, creed, color, national origin, citizenship or immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary  status, sex, HEIGHT, WEIGHT, disability, marital status, or status
 as a victim of domestic violence, of any person, directly or indirectly,
 to refuse, withhold from or deny to such  person  any  of  the  accommo-
 dations,  advantages,  facilities  or  privileges thereof, including the
 extension of credit, or, directly or indirectly, to publish,  circulate,
 issue,  display,  post  or  mail  any  written or printed communication,
 notice or advertisement, to the effect that any of  the  accommodations,
 advantages,  facilities  and  privileges  of  any  such  place  shall be
 refused, withheld from or denied to  any  person  on  account  of  race,
 creed, color, national origin, citizenship or immigration status, sexual
 orientation,  gender  identity  or  expression,  military  status,  sex,
 HEIGHT, WEIGHT, disability or marital status, or that the  patronage  or
 custom  thereat  of  any person of or purporting to be of any particular
 race, creed, color, national origin, citizenship or immigration  status,
 sexual  orientation, gender identity or expression, military status, sex
 or marital status, or having a disability is unwelcome, objectionable or
 not acceptable, desired or solicited.
   (b) Nothing in this subdivision shall  be  construed  to  prevent  the
 barring of any person, because of the sex of such person, from places of
 public  accommodation,  resort  or  amusement  if the division grants an
 exemption based on bona fide considerations of public policy; nor  shall
 this subdivision apply to the rental of rooms in a housing accommodation
 which restricts such rental to individuals of one sex.  NOTHING IN  THIS
 SUBDIVISION  SHALL  BE  CONSTRUED  TO PREVENT THE BARRING OF ANY PERSON,
 BECAUSE OF HEIGHT OR WEIGHT OF SUCH PERSON, FROM PLACES OF AMUSEMENT FOR
 PURPOSES OF COMPLIANCE WITH ANY AMUSEMENT INDUSTRY SAFETY STANDARDS.
   (F)  THE  PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
 SHALL NOT APPLY TO AN ACTION BY ANY PERSON,  BEING  THE  OWNER,  LESSEE,
 PROPRIETOR,  MANAGER,  SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY PLACE OF
 PUBLIC ACCOMMODATION, RESORT OR AMUSEMENT, BASED ON A PERSON'S HEIGHT OR
 WEIGHT WHEN SUCH ACTION IS REQUIRED OR PERMITTED BY FEDERAL,  STATE,  OR
 LOCAL  LAW OR REGULATION. NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED
 S. 2440--A                          5
 
 TO PREVENT ALTERNATIVE ACTIONS REASONABLY TAKEN BY ANY PERSON, BEING THE
 OWNER, LESSEE, PROPRIETOR, MANAGER, SUPERINTENDENT, AGENT OR EMPLOYEE OF
 ANY PLACE OF   PUBLIC  ACCOMMODATION,  RESORT  OR  AMUSEMENT,  TO  ALLOW
 PERSONS  WHO  DO  NOT  MEET  HEIGHT OR WEIGHT CRITERIA NECESSARY FOR THE
 NORMAL OPERATIONS OF A PARTICULAR PLACE OR PROVIDER OF ACCOMMODATION, OR
 A CATEGORY OF SUCH PLACES OR PROVIDERS, TO USE  OR  ENJOY  THE  ACCOMMO-
 DATIONS, ADVANTAGES, SERVICES, FACILITIES, OR PRIVILEGES OF THE PLACE OR
 PROVIDER  OF  PUBLIC ACCOMMODATION. IN INSTANCES WHERE ANY PERSON, BEING
 THE OWNER, LESSEE, PROPRIETOR, MANAGER, SUPERINTENDENT, AGENT OR EMPLOY-
 EE OF ANY PLACE OF  PUBLIC ACCOMMODATION, RESORT OR AMUSEMENT'S,  ACTION
 IS  NOT  REQUIRED BY LAW OR REGULATION OR PERMITTED BY LAW OR REGULATION
 AS DESCRIBED IN THIS PARAGRAPH, IT SHALL BE AN AFFIRMATIVE DEFENSE  THAT
 AN  ACTION WAS TAKEN BECAUSE THERE WERE NO AVAILABLE ALTERNATIVE ACTIONS
 THE ENTITY COULD HAVE TAKEN  THAT  COULD  HAVE  REASONABLY  ALLOWED  THE
 PERSON TO USE OR ENJOY THE ACCOMMODATIONS, ADVANTAGES, SERVICES, FACILI-
 TIES, OR PRIVILEGES OF THE PLACE OR PROVIDER OF PUBLIC ACCOMMODATION.
   §  4. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section
 296 of the executive law, as separately amended by chapters 202 and  748
 of the laws of 2022, are amended to read as follows:
   (a)  To refuse to sell, rent or lease or otherwise to deny to or with-
 hold from any person or group of  persons  such  housing  accommodations
 because of the race, creed, color, disability, national origin, citizen-
 ship  or  immigration  status,  sexual  orientation,  gender identity or
 expression, military status, age, sex, HEIGHT, WEIGHT,  marital  status,
 status  as  a  victim  of  domestic violence, lawful source of income or
 familial status of such person or persons,  or  to  represent  that  any
 housing  accommodation  or  land  is not available for inspection, sale,
 rental or lease when in fact it is so available.
   (b) To discriminate against any person because of  his  or  her  race,
 creed,  color,  disability,  national origin, citizenship or immigration
 status, sexual orientation,  gender  identity  or  expression,  military
 status,  age, sex, HEIGHT, WEIGHT, marital status, status as a victim of
 domestic violence, lawful source of income or  familial  status  in  the
 terms,  conditions or privileges of any publicly-assisted housing accom-
 modations or in the furnishing of facilities or services  in  connection
 therewith.
   (c) To cause to be made any written or oral inquiry or record concern-
 ing  the race, creed, color, disability, national origin, citizenship or
 immigration status, sexual orientation, gender identity  or  expression,
 membership  in  the  reserve armed forces of the United States or in the
 organized militia of  the  state,  age,  sex,  HEIGHT,  WEIGHT,  marital
 status, status as a victim of domestic violence, lawful source of income
 or familial status of a person seeking to rent or lease any publicly-as-
 sisted  housing  accommodation;  provided, however, that nothing in this
 subdivision shall prohibit a member of the reserve armed forces  of  the
 United  States or in the organized militia of the state from voluntarily
 disclosing such membership.
   (c-1) To print or circulate or cause to be printed or  circulated  any
 statement,  advertisement or publication, or to use any form of applica-
 tion for the purchase, rental or lease of such housing accommodation  or
 to  make  any  record  or  inquiry  in  connection  with the prospective
 purchase,  rental  or  lease  of  such  a  housing  accommodation  which
 expresses,  directly  or  indirectly,  any  limitation, specification or
 discrimination as to race, creed, color, national origin, citizenship or
 immigration status, sexual orientation, gender identity  or  expression,
 military  status,  sex, HEIGHT, WEIGHT, age, disability, marital status,
 S. 2440--A                          6
 
 status as a victim of domestic violence,  lawful  source  of  income  or
 familial  status,  or any intent to make any such limitation, specifica-
 tion or discrimination.
   §  5.  Subdivisions 3-b, 4 and 13 of section 296 of the executive law,
 as separately amended by chapters 202 and 748 of the laws of  2022,  are
 amended to read as follows:
   3-b.  It  shall  be  an  unlawful discriminatory practice for any real
 estate broker, real estate salesperson or employee or agent  thereof  or
 any  other  individual, corporation, partnership or organization for the
 purpose of inducing a real estate transaction from which any such person
 or any of its stockholders or members may benefit financially, to repre-
 sent that a change has occurred or will or may occur in the  composition
 with  respect  to  race,  creed,  color, national origin, citizenship or
 immigration status, sexual orientation, gender identity  or  expression,
 military status, sex, HEIGHT, WEIGHT, disability, marital status, status
 as  a  victim  of domestic violence, or familial status of the owners or
 occupants in the block, neighborhood or area in which the real  property
 is  located,  and to represent, directly or indirectly, that this change
 will or may result in undesirable consequences in the  block,  neighbor-
 hood  or  area  in which the real property is located, including but not
 limited to the lowering of property values, an increase in  criminal  or
 anti-social  behavior,  or  a decline in the quality of schools or other
 facilities.
   4. (A) It shall be an unlawful discriminatory practice for  an  educa-
 tional  institution  to  deny  the  use  of its facilities to any person
 otherwise qualified, or to permit  the  harassment  of  any  student  or
 applicant,  by reason of his race, color, religion, disability, national
 origin, citizenship or immigration status,  sexual  orientation,  gender
 identity or expression, military status, sex, HEIGHT, WEIGHT, age, mari-
 tal  status, or status as a victim of domestic violence, except that any
 such institution which establishes or maintains a  policy  of  educating
 persons of one sex exclusively may admit students of only one sex.
   (B)  THE  PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
 SHALL NOT APPLY TO AN ACTION BY AN EDUCATIONAL INSTITUTION  BASED  ON  A
 PERSON'S  HEIGHT  OR WEIGHT WHEN SUCH ACTION IS REQUIRED OR PERMITTED BY
 FEDERAL, STATE, OR LOCAL LAW OR REGULATION. NOTHING IN THIS  SUBDIVISION
 SHALL BE CONSTRUED TO PREVENT ALTERNATIVE ACTIONS REASONABLY TAKEN BY AN
 EDUCATIONAL  INSTITUTION  TO  ALLOW  PERSONS  WHO  DO NOT MEET HEIGHT OR
 WEIGHT CRITERIA TO PARTICIPATE IN EDUCATIONAL INSTITUTION PROGRAMS, SUCH
 AS ATHLETIC PROGRAMS OR OTHER EXTRACURRICULAR PROGRAMS, INCLUDING OFFER-
 ING INCENTIVES THAT SUPPORT WEIGHT MANAGEMENT AS  PART  OF  A  VOLUNTARY
 WELLNESS PROGRAM. IN INSTANCES WHERE AN EDUCATIONAL FACILITY'S ACTION IS
 NOT  REQUIRED  BY LAW OR REGULATION OR PERMITTED BY LAW OR REGULATION AS
 DESCRIBED IN THIS PARAGRAPH, IT SHALL BE AN AFFIRMATIVE DEFENSE THAT  AN
 ACTION WAS TAKEN BECAUSE THERE WERE NO AVAILABLE ALTERNATIVE ACTIONS THE
 ENTITY COULD HAVE TAKEN THAT COULD HAVE REASONABLY ALLOWED THE PERSON TO
 PARTICIPATE IN AN EDUCATIONAL INSTITUTION'S PROGRAM.
   13. It shall be an unlawful discriminatory practice (i) for any person
 to  boycott  or  blacklist,  or  to refuse to buy from, sell to or trade
 with, or otherwise discriminate against any person, because of the race,
 creed, color, national origin, citizenship or immigration status, sexual
 orientation,  gender  identity  or  expression,  military  status,  sex,
 HEIGHT,  WEIGHT, status as a victim of domestic violence, disability, or
 familial status, or of  such  person,  or  of  such  person's  partners,
 members,  stockholders,  directors, officers, managers, superintendents,
 agents, employees, business associates, suppliers or customers, or  (ii)
 S. 2440--A                          7
 
 for  any  person  wilfully  to  do any act or refrain from doing any act
 which enables any such person to  take  such  action.  This  subdivision
 shall not apply to:
   (a) Boycotts connected with labor disputes; or
   (b) Boycotts to protest unlawful discriminatory practices.
   §  6. Paragraphs (a), (b), (c) and (d) of subdivision 5 of section 296
 of the executive law, as separately amended by chapters 202 and  748  of
 the laws of 2022, are amended to read as follows:
   (a)  It  shall  be  an unlawful discriminatory practice for the owner,
 lessee, sub-lessee, assignee, or managing  agent  of,  or  other  person
 having  the  right  to  sell,  rent  or  lease  a housing accommodation,
 constructed or to be constructed, or any agent or employee thereof:
   (1) To refuse to sell, rent, lease or otherwise to deny to or withhold
 from any person or group of persons such a housing accommodation because
 of the race, creed, color, national origin, citizenship  or  immigration
 status,  sexual  orientation,  gender  identity  or expression, military
 status, sex, HEIGHT, WEIGHT, age, disability, marital status, status  as
 a  victim  of  domestic  violence,  lawful  source of income or familial
 status of such person or persons,  or  to  represent  that  any  housing
 accommodation  or  land is not available for inspection, sale, rental or
 lease when in fact it is so available.
   (2) To discriminate against any person because of race, creed,  color,
 national  origin, citizenship or immigration status, sexual orientation,
 gender identity or expression, military  status,  sex,  HEIGHT,  WEIGHT,
 age,  disability,  marital  status,  status  as  a  victim  of  domestic
 violence, lawful source of income  or  familial  status  in  the  terms,
 conditions  or privileges of the sale, rental or lease of any such hous-
 ing accommodation or in the furnishing  of  facilities  or  services  in
 connection therewith.
   (3)  To  print  or  circulate or cause to be printed or circulated any
 statement, advertisement or publication, or to use any form of  applica-
 tion  for the purchase, rental or lease of such housing accommodation or
 to make any  record  or  inquiry  in  connection  with  the  prospective
 purchase,  rental  or  lease  of  such  a  housing  accommodation  which
 expresses, directly or  indirectly,  any  limitation,  specification  or
 discrimination as to race, creed, color, national origin, citizenship or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, sex, HEIGHT, WEIGHT, age, disability,  marital  status,
 status  as  a  victim  of  domestic violence, lawful source of income or
 familial status, or any intent to make any such  limitation,  specifica-
 tion or discrimination.
   (4)  (i) The provisions of subparagraphs one and two of this paragraph
 shall not apply (1) to the rental of a housing accommodation in a build-
 ing which contains housing accommodations for not more than two families
 living independently of each other, if the owner resides in one of  such
 housing  accommodations,  (2)  to  the  restriction of the rental of all
 rooms in a housing accommodation to individuals of the same sex  or  (3)
 to  the  rental  of  a room or rooms in a housing accommodation, if such
 rental is by the occupant of the housing accommodation or by  the  owner
 of  the  housing  accommodation  and  the  owner resides in such housing
 accommodation or (4) solely with respect to age and familial  status  to
 the  restriction  of the sale, rental or lease of housing accommodations
 exclusively to persons sixty-two years of age or older and the spouse of
 any such person, or for housing intended and operated for  occupancy  by
 at least one person fifty-five years of age or older per unit. In deter-
 mining whether housing is intended and operated for occupancy by persons
 S. 2440--A                          8

 fifty-five  years  of age or older, Sec. 807(b) (2) (c) (42 U.S.C.  3607
 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended,  shall
 apply.  However, such rental property shall no longer be exempt from the
 provisions  of  subparagraphs  one and two of this paragraph if there is
 unlawful discriminatory conduct pursuant to subparagraph three  of  this
 paragraph.
   (ii) The provisions of subparagraphs one, two, and three of this para-
 graph  shall not apply (1) to the restriction of the rental of all rooms
 in a housing accommodation to individuals of the same sex,  (2)  to  the
 rental  of a room or rooms in a housing accommodation, if such rental is
 by the occupant of the housing accommodation or  by  the  owner  of  the
 housing  accommodation  and  the  owner resides in such housing accommo-
 dation, or (3) solely with respect to age and  familial  status  to  the
 restriction  of  the  sale,  rental  or  lease of housing accommodations
 exclusively to persons sixty-two years of age or older and the spouse of
 any such person, or for housing intended and operated for  occupancy  by
 at least one person fifty-five years of age or older per unit. In deter-
 mining whether housing is intended and operated for occupancy by persons
 fifty-five  years  of age or older, Sec. 807(b) (2) (c) (42 U.S.C.  3607
 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended,  shall
 apply.
   (b)  It  shall  be  an unlawful discriminatory practice for the owner,
 lessee, sub-lessee, or managing agent of, or  other  person  having  the
 right of ownership or possession of or the right to sell, rent or lease,
 land or commercial space:
   (1)  To  refuse  to sell, rent, lease or otherwise deny to or withhold
 from any person or group of persons land or commercial space because  of
 the  race,  creed,  color,  national  origin, citizenship or immigration
 status, sexual orientation,  gender  identity  or  expression,  military
 status,  sex, HEIGHT, WEIGHT, age, disability, marital status, status as
 a victim of domestic violence, or familial  status  of  such  person  or
 persons,  or  to represent that any housing accommodation or land is not
 available for inspection, sale, rental or lease when in fact  it  is  so
 available;
   (2)  To discriminate against any person because of race, creed, color,
 national origin, citizenship or immigration status, sexual  orientation,
 gender  identity  or  expression,  military status, sex, HEIGHT, WEIGHT,
 age,  disability,  marital  status,  status  as  a  victim  of  domestic
 violence,  or  familial status in the terms, conditions or privileges of
 the sale, rental or lease of any such land or commercial  space;  or  in
 the furnishing of facilities or services in connection therewith;
   (3)  To  print  or  circulate or cause to be printed or circulated any
 statement, advertisement or publication, or to use any form of  applica-
 tion  for the purchase, rental or lease of such land or commercial space
 or to make any record or inquiry  in  connection  with  the  prospective
 purchase,  rental  or  lease  of  such  land  or  commercial space which
 expresses, directly or  indirectly,  any  limitation,  specification  or
 discrimination as to race, creed, color, national origin, citizenship or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, sex, HEIGHT, WEIGHT, age, disability,  marital  status,
 status  as  a  victim  of  domestic violence, or familial status; or any
 intent to make any such limitation, specification or discrimination.
   (4) With respect to age and familial status, the  provisions  of  this
 paragraph  shall  not  apply  to  the restriction of the sale, rental or
 lease of land or commercial  space  exclusively  to  persons  fifty-five
 years  of  age  or  older  and  the spouse of any such person, or to the
 S. 2440--A                          9
 
 restriction of the sale, rental or lease of land  to  be  used  for  the
 construction,  or  location  of  housing  accommodations exclusively for
 persons sixty-two years of age or older, or intended  and  operated  for
 occupancy  by  at  least one person fifty-five years of age or older per
 unit. In determining whether housing is intended and operated for  occu-
 pancy  by  persons fifty-five years of age or older, Sec. 807(b) (2) (c)
 (42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988,  as
 amended, shall apply.
   (c)  It  shall  be  an  unlawful  discriminatory practice for any real
 estate broker, real estate salesperson or employee or agent thereof:
   (1) To refuse to sell, rent or lease any housing  accommodation,  land
 or  commercial  space  to any person or group of persons or to refuse to
 negotiate for the sale, rental or lease, of any  housing  accommodation,
 land  or  commercial  space to any person or group of persons because of
 the race, creed, color,  national  origin,  citizenship  or  immigration
 status,  sexual  orientation,  gender  identity  or expression, military
 status, sex, HEIGHT, WEIGHT, age, disability, marital status, status  as
 a  victim  of  domestic  violence,  lawful  source of income or familial
 status of such person or persons,  or  to  represent  that  any  housing
 accommodation, land or commercial space is not available for inspection,
 sale,  rental  or lease when in fact it is so available, or otherwise to
 deny or withhold any housing accommodation, land or commercial space  or
 any  facilities  of  any housing accommodation, land or commercial space
 from any person or group of persons because of the race,  creed,  color,
 national  origin, citizenship or immigration status, sexual orientation,
 gender identity or expression, military  status,  sex,  HEIGHT,  WEIGHT,
 age,  disability,  marital  status,  lawful source of income or familial
 status of such person or persons.
   (2) To print or circulate or cause to be  printed  or  circulated  any
 statement,  advertisement or publication, or to use any form of applica-
 tion for the purchase, rental or lease  of  any  housing  accommodation,
 land  or commercial space or to make any record or inquiry in connection
 with the prospective purchase, rental or lease of any  housing  accommo-
 dation,  land or commercial space which expresses, directly or indirect-
 ly, any limitation, specification, or discrimination as to race,  creed,
 color, national origin, citizenship or immigration status, sexual orien-
 tation,  gender  identity  or  expression, military status, sex, HEIGHT,
 WEIGHT, age, disability, marital status, status as a victim of  domestic
 violence,  lawful  source of income or familial status; or any intent to
 make any such limitation, specification or discrimination.
   (3) With respect to age and familial status, the  provisions  of  this
 paragraph  shall  not  apply  to  the restriction of the sale, rental or
 lease of any housing accommodation, land or commercial space exclusively
 to persons fifty-five years of age or older and the spouse of  any  such
 person,  or to the restriction of the sale, rental or lease of any hous-
 ing accommodation or land to be used for the construction or location of
 housing accommodations for persons sixty-two years of age or  older,  or
 intended  and  operated  for occupancy by at least one person fifty-five
 years of age or older  per  unit.  In  determining  whether  housing  is
 intended  and  operated for occupancy by persons fifty-five years of age
 or older, Sec. 807 (b) (2) (c) (42 U.S.C.  3607  (b)  (2)  (c))  of  the
 federal Fair Housing Act of 1988, as amended, shall apply.
   (d)  It  shall  be  an  unlawful  discriminatory practice for any real
 estate board, because of the race, creed, color, national origin,  citi-
 zenship  or  immigration  status, sexual orientation, gender identity or
 expression, military status, age, sex, HEIGHT, WEIGHT, disability, mari-
 S. 2440--A                         10
 
 tal status, status as a victim of domestic violence,  lawful  source  of
 income  or  familial status of any individual who is otherwise qualified
 for membership, to exclude or expel such individual from membership,  or
 to  discriminate  against  such  individual in the terms, conditions and
 privileges of membership in such board.
   § 7. Subdivisions 1, 2 and 3 of section 296-a of the executive law, as
 separately amended by chapters 202 and 748 of  the  laws  of  2022,  are
 amended to read as follows:
   1. It shall be an unlawful discriminatory practice for any creditor or
 any officer, agent or employee thereof:
   a.  In  the  case  of  applications  for  credit  with  respect to the
 purchase, acquisition, construction, rehabilitation, repair  or  mainte-
 nance of any housing accommodation, land or commercial space to discrim-
 inate  against  any  such  applicant  because of the race, creed, color,
 national origin, citizenship or immigration status, sexual  orientation,
 gender  identity  or  expression,  military  status,  age,  sex, HEIGHT,
 WEIGHT, marital status, status as a victim of domestic  violence,  disa-
 bility,  or  familial  status  of  such  applicant  or applicants or any
 member, stockholder, director, officer or employee of such applicant  or
 applicants,  or  of the prospective occupants or tenants of such housing
 accommodation, land or commercial space, in the  granting,  withholding,
 extending  or  renewing,  or in the fixing of the rates, terms or condi-
 tions of, any such credit;
   b. To discriminate in the granting, withholding, extending  or  renew-
 ing,  or in the fixing of the rates, terms or conditions of, any form of
 credit, on the basis of race, creed, color, national origin, citizenship
 or  immigration  status,  sexual   orientation,   gender   identity   or
 expression,  military  status, age, sex, HEIGHT, WEIGHT, marital status,
 status as a victim of domestic violence, disability, or familial status;
   c. To use any form of application for credit or use or make any record
 or inquiry which expresses,  directly  or  indirectly,  any  limitation,
 specification,  or  discrimination  as  to  race, creed, color, national
 origin, citizenship or immigration status,  sexual  orientation,  gender
 identity or expression, military status, age, sex, HEIGHT, WEIGHT, mari-
 tal  status,  status  as  a  victim of domestic violence, disability, or
 familial status;
   d. To make any inquiry of an applicant concerning his or her  capacity
 to reproduce, or his or her use or advocacy of any form of birth control
 or family planning;
   e.  To  refuse  to  consider  sources  of  an applicant's income or to
 subject an applicant's income to  discounting,  in  whole  or  in  part,
 because  of an applicant's race, creed, color, national origin, citizen-
 ship or immigration  status,  sexual  orientation,  gender  identity  or
 expression,  military  status, age, sex, HEIGHT, WEIGHT, marital status,
 status as a victim of domestic violence, childbearing  potential,  disa-
 bility, or familial status;
   f.  To  discriminate  against  a  married  person  because such person
 neither uses nor is known by the surname of his or her spouse.
   This paragraph shall not apply to any situation where  the  use  of  a
 surname would constitute or result in a criminal act.
   2. Without limiting the generality of subdivision one of this section,
 it  shall  be considered discriminatory if, because of an applicant's or
 class of applicants' race, creed, color, national origin, citizenship or
 immigration status, sexual orientation, gender identity  or  expression,
 military  status,  age, sex, HEIGHT, WEIGHT, marital status, status as a
 victim of domestic violence, disability,  or  familial  status,  (i)  an
 S. 2440--A                         11
 
 applicant or class of applicants is denied credit in circumstances where
 other  applicants  of like overall credit worthiness are granted credit,
 or (ii) special requirements or conditions, such as  requiring  co-obli-
 gors  or  reapplication  upon marriage, are imposed upon an applicant or
 class of applicants  in  circumstances  where  similar  requirements  or
 conditions  are not imposed upon other applicants of like overall credit
 worthiness.
   3. It shall not  be  considered  discriminatory  if  credit  differen-
 tiations  or  decisions  are based upon factually supportable, objective
 differences in applicants' overall credit worthiness, which may  include
 reference  to  such  factors  as current income, assets and prior credit
 history of such applicants, as well as reference to any  other  relevant
 factually  supportable  data;  provided, however, that no creditor shall
 consider, in evaluating the credit worthiness of an applicant, aggregate
 statistics or assumptions  relating  to  race,  creed,  color,  national
 origin,  citizenship  or  immigration status, sexual orientation, gender
 identity or expression, military status, sex,  HEIGHT,  WEIGHT,  marital
 status, status as a victim of domestic violence or disability, or to the
 likelihood  of  any group of persons bearing or rearing children, or for
 that reason receiving diminished or interrupted income in the future.
   § 8. Paragraphs a, b and c of subdivision 2 and paragraph b of  subdi-
 vision 3 of section 296-c of the executive law, as separately amended by
 chapters  202  and  748  of  the  laws  of  2022, are amended to read as
 follows:
   a. refuse to hire or employ or to bar or to discharge from  internship
 an intern or to discriminate against such intern in terms, conditions or
 privileges of employment as an intern because of the intern's age, race,
 creed, color, national origin, citizenship or immigration status, sexual
 orientation,  military  status, sex, HEIGHT, WEIGHT, disability, predis-
 posing genetic characteristics, marital status, or status as a victim of
 domestic violence;
   b. discriminate against an intern in receiving, classifying, disposing
 or otherwise acting upon applications for  internships  because  of  the
 intern's  age, race, creed, color, national origin, citizenship or immi-
 gration  status,  sexual  orientation,  military  status,  sex,  HEIGHT,
 WEIGHT,   disability,   predisposing  genetic  characteristics,  marital
 status, or status as a victim of domestic violence;
   c. print or circulate or cause to be printed or circulated any  state-
 ment,  advertisement  or  publication, or to use any form of application
 for employment as an intern or to make any inquiry  in  connection  with
 prospective  employment,  which  expresses  directly  or indirectly, any
 limitation, specification or discrimination  as  to  age,  race,  creed,
 color, national origin, citizenship or immigration status, sexual orien-
 tation,  military  status, sex, HEIGHT, WEIGHT, disability, predisposing
 genetic characteristics, marital status or status as a victim of  domes-
 tic  violence,  or any intent to make any such limitation, specification
 or discrimination, unless based upon a bona fide occupational qualifica-
 tion; provided, however, that neither this paragraph nor  any  provision
 of  this chapter or other law shall be construed to prohibit the depart-
 ment of civil service  or  the  department  of  personnel  of  any  city
 containing  more than one county from requesting information from appli-
 cants for civil service internships or examinations  concerning  any  of
 the  aforementioned  characteristics, other than sexual orientation, for
 the purpose of conducting studies to identify and resolve possible prob-
 lems in recruitment and testing of members of minority groups to  ensure
 the fairest possible and equal opportunities for employment in the civil
 S. 2440--A                         12
 
 service for all persons, regardless of age, race, creed, color, national
 origin,  citizenship or immigration status, sexual orientation, military
 status, sex, HEIGHT, WEIGHT, disability, predisposing genetic character-
 istics, marital status or status as a victim of domestic violence;
   b.  subject  an  intern  to  unwelcome  harassment  based on age, sex,
 HEIGHT, WEIGHT, race, creed, color, sexual orientation, military status,
 disability, predisposing genetic characteristics, marital status, status
 as a victim of domestic violence, national  origin,  or  citizenship  or
 immigration  status,  or where such harassment has the purpose or effect
 of unreasonably interfering with the intern's work performance by creat-
 ing an intimidating, hostile, or offensive working environment.
   § 9. Subdivision 2 of section 296-c of the executive law is amended by
 adding a new paragraph f to read as follows:
   F. THE PROVISIONS OF THIS SUBDIVISION RELATING TO  HEIGHT  AND  WEIGHT
 SHALL  NOT  APPLY TO AN ACTION BY AN EMPLOYER BASED ON A PERSON'S HEIGHT
 OR WEIGHT WHEN SUCH ACTION IS REQUIRED OR PERMITTED BY  FEDERAL,  STATE,
 OR  LOCAL  LAW  OR  REGULATION.  NOTHING  IN  THIS  SUBDIVISION SHALL BE
 CONSTRUED TO PREVENT ALTERNATIVE ACTIONS REASONABLY TAKEN BY AN EMPLOYER
 TO ALLOW PERSONS WHO DO NOT MEET HEIGHT OR WEIGHT  CRITERIA  TO  PERFORM
 THE  ESSENTIAL  REQUISITES  AND/OR  NORMAL  OPERATIONS OF AN INTERNSHIP,
 INCLUDING OFFERING INCENTIVES THAT SUPPORT WEIGHT MANAGEMENT AS PART  OF
 A  VOLUNTARY  WELLNESS  PROGRAM.  IN  INSTANCES WHERE AN EMPLOYER IS NOT
 REQUIRED BY LAW OR REGULATION OR  PERMITTED  BY  LAW  OR  REGULATION  AS
 DESCRIBED  IN THIS PARAGRAPH, IT SHALL BE AN AFFIRMATIVE DEFENSE THAT AN
 ACTION WAS TAKEN BECAUSE THERE WERE NO AVAILABLE ALTERNATIVE ACTIONS THE
 EMPLOYER COULD HAVE TAKEN THAT COULD HAVE REASONABLY ALLOWED THE  PERSON
 TO  PERFORM  THE  ESSENTIAL  REQUISITES  AND/OR NORMAL OPERATIONS OF THE
 INTERNSHIP.
   § 10. This act shall not annul, alter, affect or exempt  any  employer
 subject  to  the  provisions  of  this act from complying with the laws,
 ordinances, rules or regulations of any locality, except to  the  extent
 that  such  laws, ordinances, rules or regulations are inconsistent with
 any provision of this act, but no such law,  ordinance,  rule  or  regu-
 lation  shall  be considered inconsistent if it affords equal or greater
 protection to the employee.
   § 11. This act shall take effect on  the  one  hundred  eightieth  day
 after  it  shall have become a law. Effective immediately, the addition,
 amendment and/or repeal of any rule  or  regulation  necessary  for  the
 implementation  of  this  act on its effective date are authorized to be
 made and completed on or before such effective date.