S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8699
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 30, 2025
                                ___________
 
 Introduced  by  M.  of A. BICHOTTE HERMELYN -- read once and referred to
   the Committee on Governmental Operations
 
 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
 ESTABLISHING EACH OF THE TWO ELEMENTS OF A LEGALLY SUFFICIENT JUSTIFICA-
 TION ARE SET FORTH IN PARAGRAPH (D) OF THIS SUBDIVISION.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13283-01-5
              

 A. 8699                             2
 
   (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.