BILL NUMBER: S8338

SPONSOR: MAYER
 
TITLE OF BILL:

An act to amend the executive law, in relation to clarifying the stand-
ard for when a practice has a discriminatory effect

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to codify disparate impact as a method of
establishing unlawful discrimination under the Human Rights Law.

 
SUMMARY OF PROVISIONS:

Section 1 amends section 296 of the executive law by adding a new subdi-
vision 5-a to establish disparate impact as a method of establishing
unlawful discrimination under the Human Rights Law.

Section 2 sets forth the effective date.

 
              

JUSTIFICATION:

Disparate impact analysis has long been a key tool for fighting discrim-
ination under federal law. Codified in Title VII, disparate impact anal-
ysis allows a plaintiff to argue that a practice or conduct is discrimi-
natory, regardless of intent, if it has a discriminatory effect. This
approach was born from Griggs v. Duke Power Co., 401 US 424 (1971) in
which the Supreme Court found that Duke Power's requirement that all
prospective employees have a high school diploma or pass an intelligence
test was discriminatory because it disproportionately barred African
Americans from gaining employment.

Under Title VII, an unlawful employment practice may be established
based on disparate impact if the complainant can demonstrate disparate
impact on the basis of certain protected classes, and the respondent
cannot demonstrate that the challenged practice was both job specific
and consistent with business necessity.

In April 2025, the Trump administration issued an Executive Order dubi-
ously finding disparate impact analysis unconstitutional ("Restoring
Equality of Opportunity and Meritocracy," April 23, 2025). The ED
declares that it is now the policy of the federal government to elimi-
nate the use of disparate impact analysis to the full extent possible to
"avoid violating the Constitution, federal civil rights law, and basic
American ideals," nevermind that disparate impact is codified in federal
law. Despite the shaky 1:eg.1- ground, the Trump administration has
plowed ahead to end civil rights cases and investigations based on
disparate impact analysis. For example, the Justice Department backed
out of a consent agreement it reached with a Maryland Police Department
after finding that the Department had engaged in a discriminatory prac-
tice by requiring prospective police officers to pass a written test
which was not job specific.1

This legislation would codify disparate impact analysis for employment
discrimination cases in New York State law, ensuring plaintiffs can
continue to bring disparate impact cases under New York law, despite the
shifting federal landscape. Under this bill, complainants could bring a
case arguing that a challenged practice had or predictably would have a
disparate impact on a protected class under section 296 of the Human
Rights Law. If the complainant successfully demonstrates that disparate
impact, consistent with federal law, an employer would have the opportu-
nity to argue that the challenged practice was job related and consist-
ent with business necessity. A complainant could also argue that such
business necessity could be served by another practice with a less
discriminatory effect.

This legislation affirms New York' s commitment to fighting discrimi-
nation in employment, despite the federal government's abdication of
their responsibility.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.
1 Mark, Julian and Mechler, Laura. "Discrimination cases unravel as
Trump scraps core civil rights tenet." The Washington Post.  June 1,
2025. Accessed at:  https://www.washingtonpost.com/
business/2025/06/01/trump-disparate-impact-discrimination- cases-
civilrights/?utm_campaign=wp_main&utm_source=
twitter&utm_medium=social&fbclid=IwQ0xDSwKrTSdleHR
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