Gonzalez-Rojas, Shimsky, Burdick, Dickens, Davila, Reyes, Simon
MLTSPNSR
Amd §296, Exec L
Clarifies the standard for intentional discrimination or retaliation claims by requiring a person or persons prove that an unlawful motivation was a motivating factor and not "the sole motivating factor" or a "but-for cause" of the challenged treatment.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1396B
SPONSOR: Bichotte Hermelyn TITLE OF BILL:
An act to amend the executive law, in relation to clarifying the stand-
ard for intentional discrimination or retaliation claims
PURPOSE OR GENERAL IDEA OF BILL:
To expand protections against retaliation by clarifying that discrimi-
nation need only be a "motivating factor" to be illegal.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends section 296 of the executive law by adding a new subdi-
vision 23 to clarify that in an intentional discrimination or retali-
ation claim under this article, it shall not be necessary to prove that
an unlawful motivation was the "sole motivating factor" or the "but for
cause" of the treatment giving rise to the claim.
Section 2 provides the effective date.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION:
Changes sections of law amended. Technical changes to effectuate the
intent of the law.
JUSTIFICATION:
Recent federal court decisions, including Bostock v. Clayton County,
have required that claims for age discrimination, and all claims for
retaliation, can only be established if "but-for" the discrimination,
the challenged action would not have taken place. For example, if the
complaint believes their hours were cut in an act of retaliation for
reporting sexual harassment, they must establish that their hours would
not have been cut but for their decision to report harassment. Because
judges have decided to interpret the New York State Human Rights Law in
line with federal statute, this onerous standard has also been applied
to age discrimination and retaliation claims brought under state law.
The "but-for" standard is confusing to jurors and represents an unat-
tainable standard in many cases. In practice, it means that some level
of discrimination is acceptable if an employer can demonstrate other
reasons for their action. This bill will establish the more attainable
"motivating factor" standard which requires that the action was moti-
vated, at least in part, by discrimination or retaliation. This is the
current standard for disparate treatment claims of discrimination under
the federal Title VII of the Civil Rights Act. Accordingly, this change
will provide a uniform standard in all claims of retaliation and
discrimination.
PRIOR LEGISLATIVE HISTORY:
2021-22: A08274-Referred to governmental operations
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
1396--B
2023-2024 Regular Sessions
IN ASSEMBLY
January 17, 2023
___________
Introduced by M. of A. BICHOTTE HERMELYN, GONZALEZ-ROJAS, SHIMSKY,
BURDICK, DICKENS, DAVILA, REYES, SIMON -- read once and referred to
the Committee on Governmental Operations -- recommitted to the Commit-
tee on Governmental Operations in accordance with Assembly Rule 3,
sec. 2 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- 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 intentional discrimination or retaliation claims
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 23 to read as follows:
3 23. Notwithstanding any federal or local statute to the contrary, a
4 person or persons bringing intentional discrimination or retaliation
5 claims under this article shall be required to prove that an unlawful
6 motivation was a motivating factor and not "the sole motivating factor"
7 or a "but-for cause" of the challenged treatment.
8 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01175-09-4
