S 8338: Clarifies the standard for when a practice has a discriminatory effect; provides that an unlawful discriminatory practice may be established by such practice's discriminatory effect, even if such practice was not motivated by a discriminatory intent.

  
  STATE OF NEW YORK ________________________________________________________________________ 8338 2025-2026 Regular Sessions  IN SENATE June 3, 2025 ___________ Introduced by Sen. MAYER -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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: 1 Section 1. Section 296 of the executive law is amended by adding a new 2 subdivision 5-a to read as follows: 3 5-a. (a) For any case alleging employment discrimination under this 4 article, an unlawful discriminatory practice may be established by a 5 practice's discriminatory effect, even if such practice was not moti- 6 vated by a discriminatory intent. The practice may still be lawful if 7 supported by a legally sufficient justification, as defined in paragraph 8 (c) of this subdivision. 9 (b) For the purposes of this subdivision, a practice has a discrimina- 10 tory effect where it actually or predictably results in a disparate 11 impact on a group of persons, because of their membership in a class 12 protected under this section. 13 (c) (i) A legally sufficient justification exists where the challenged 14 practice: 15 (A) is job related for the position in question and consistent with 16 business necessity; and 17 (B) that the business necessity could not be served by another prac- 18 tice that has a less discriminatory effect. 19 (ii) A legally sufficient justification shall be supported by evidence 20 and may not be hypothetical or speculative. The burdens of proof for 21 establishing each of the two elements of a legally sufficient justifica- 22 tion are set forth in paragraph (d) of this subdivision. 23 (d) (i) The complainant shall have the burden of proving that a chal- 24 lenged practice caused or predictably will cause a discriminatory 25 effect. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13283-04-5 
 S. 8338 2 1 (ii) Once the complainant satisfies the burden of proof set forth in 2 subparagraph one of this paragraph, the respondent shall have the burden 3 of proving that the challenged practice is job related for the position 4 in question and consistent with business necessity. 5 (iii) If the respondent satisfies the burden of proof set forth in 6 subparagraph two of this paragraph, the complainant may still prevail 7 upon proving that the business necessity could be served by another 8 practice that has a less discriminatory effect. 9 (e) A demonstration that a practice is supported by a legally suffi- 10 cient justification, as defined in paragraph (c) of this subdivision, 11 may not be used as a defense against a claim of intentional discrimi- 12 nation. 13 (f) Nothing in this subdivision shall be construed or interpreted as 14 limiting, restricting, overriding, or supplanting any broader interpre- 15 tation of the discriminatory practices described in this article or the 16 availability of liability under this article. 17 § 2. This act shall take effect immediately and shall apply to all 18 cases alleging unlawful discriminatory practices constituting employment 19 discrimination occurring on and after such effective date. Effective 20 immediately, the addition, amendment and/or repeal of any rule or regu- 21 lation necessary for the implementation of this act on its effective 22 date are authorized to be made and completed on or before such effective 23 date.