S T A T E O F N E W Y O R K
________________________________________________________________________
4992--A
2025-2026 Regular Sessions
I N A S S E M B L Y
February 10, 2025
___________
Introduced by M. of A. BICHOTTE HERMELYN, GONZALEZ-ROJAS, SHIMSKY,
BURDICK, DAVILA, REYES, SIMON -- read once and referred to the Commit-
tee on Governmental Operations -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the executive law, in relation to clarifying the stand-
ard for when a practice has a discriminatory effect
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 a new
subdivision 5-a to read as follows:
5-A. (A) FOR ANY CASE ALLEGING EMPLOYMENT DISCRIMINATION UNDER THIS
ARTICLE, AN UNLAWFUL DISCRIMINATORY PRACTICE MAY BE ESTABLISHED BY A
PRACTICE'S DISCRIMINATORY EFFECT, EVEN IF SUCH PRACTICE WAS NOT MOTI-
VATED BY A DISCRIMINATORY INTENT. THE PRACTICE MAY STILL BE LAWFUL IF
SUPPORTED BY A LEGALLY SUFFICIENT JUSTIFICATION, AS DEFINED IN PARAGRAPH
(C) OF THIS SUBDIVISION.
(B) FOR THE PURPOSES OF THIS SUBDIVISION, A PRACTICE HAS A DISCRIMINA-
TORY EFFECT WHERE IT ACTUALLY OR PREDICTABLY RESULTS IN A DISPARATE
IMPACT ON A GROUP OF PERSONS, BECAUSE OF RACE, CREED, COLOR, NATIONAL
ORIGIN, CITIZENSHIP OR IMMIGRATION STATUS, SEXUAL ORIENTATION, GENDER
IDENTITY OR EXPRESSION, MILITARY STATUS, SEX, AGE, DISABILITY, MARITAL
STATUS, STATUS AS A VICTIM OF DOMESTIC VIOLENCE, LAWFUL SOURCE OF INCOME
OR FAMILIAL.
(C) (I) A LEGALLY SUFFICIENT JUSTIFICATION EXISTS WHERE THE CHALLENGED
PRACTICE:
(A) IS NECESSARY TO ACHIEVE ONE OR MORE SUBSTANTIAL, LEGITIMATE,
NONDISCRIMINATORY INTERESTS OF THE RESPONDENT; AND
(B) THOSE INTERESTS COULD NOT BE SERVED BY ANOTHER PRACTICE THAT HAS A
LESS DISCRIMINATORY EFFECT.
(II) A LEGALLY SUFFICIENT JUSTIFICATION SHALL BE SUPPORTED BY EVIDENCE
AND MAY NOT BE HYPOTHETICAL OR SPECULATIVE. THE BURDENS OF PROOF FOR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03515-02-5
A. 4992--A 2
ESTABLISHING EACH OF THE TWO ELEMENTS OF A LEGALLY SUFFICIENT JUSTIFICA-
TION ARE SET FORTH IN PARAGRAPH (D) OF THIS SUBDIVISION.
(D) (I) THE COMPLAINANT SHALL HAVE THE BURDEN OF PROVING THAT A CHAL-
LENGED PRACTICE CAUSED OR PREDICTABLY WILL CAUSE A DISCRIMINATORY
EFFECT.
(II) ONCE THE COMPLAINANT SATISFIES THE BURDEN OF PROOF SET FORTH IN
SUBPARAGRAPH ONE OF THIS PARAGRAPH, THE RESPONDENT SHALL HAVE THE BURDEN
OF PROVING THAT THE CHALLENGED PRACTICE IS NECESSARY TO ACHIEVE ONE OR
MORE SUBSTANTIAL, LEGITIMATE, NONDISCRIMINATORY INTERESTS OF THE
RESPONDENT.
(III) IF THE RESPONDENT SATISFIES THE BURDEN OF PROOF SET FORTH IN
SUBPARAGRAPH TWO OF THIS PARAGRAPH, THE COMPLAINANT MAY STILL PREVAIL
UPON PROVING THAT THE SUBSTANTIAL, LEGITIMATE, NONDISCRIMINATORY INTER-
ESTS SUPPORTING THE CHALLENGED PRACTICE COULD BE SERVED BY ANOTHER PRAC-
TICE THAT HAS A LESS DISCRIMINATORY EFFECT.
(E) A DEMONSTRATION THAT A PRACTICE IS SUPPORTED BY A LEGALLY SUFFI-
CIENT JUSTIFICATION, AS DEFINED IN PARAGRAPH (C) OF THIS SUBDIVISION,
MAY NOT BE USED AS A DEFENSE AGAINST A CLAIM OF INTENTIONAL DISCRIMI-
NATION.
(F) NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED OR INTERPRETED AS
LIMITING, RESTRICTING, OVERRIDING, OR SUPPLANTING ANY BROADER INTERPRE-
TATION OF THE DISCRIMINATORY PRACTICES DESCRIBED IN THIS ARTICLE OR THE
AVAILABILITY OF LIABILITY UNDER THIS ARTICLE.
§ 2. This act shall take effect immediately and shall apply to all
cases alleging unlawful discriminatory practices constituting employment
discrimination occurring on and after such effective date. Effective
immediately, the addition, amendment and/or repeal of any rule or regu-
lation necessary for the implementation of this act on its effective
date are authorized to be made and completed on or before such effective
date.