Codifies the disparate impact standard in the human rights law; provides that in cases of alleged housing discrimination, an unlawful discriminatory practice may be established by a practice's discriminatory effect.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4040A
SPONSOR: Lasher TITLE OF BILL:
An act to amend the executive law, in relation to codifying the dispa-
rate impact standard in the human rights law
PURPOSE OR GENERAL IDEA OF BILL:
This bill would codify the "disparate impact" standard for housing
discrimination cases under the New York State Human Rights Law, ensuring
the continued protection of New Yorkers even as the Department of Hous-
ing and Urban Development, ("HUD") rule and federal case law establish-
ing disparate impact comes under attack, through the administrative
process and litigation.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends section 296 of the Executive Law, the
unlawful discriminatory practices section under the New York State Human
Rights Law, by adding a new subdivision 5-a to specify that practices
leading to discriminatory effect, even if such practices were not moti-
vated, by discriminatory intent, would be considered unlawful discrimi-
nation.
Paragraph b of the new subdivision 5-a provides that this unlawful
discrimination would apply to the protected classes for the sale, rent,
or lease of a housing accommodation under the state's Human Rights Law
provisions in Section 296, subdivision 5 of the Executive Law.
Paragraph c of the new subdivision 5-a provides for what constitutes a
legally sufficient justification.
Paragraph d of the new subdivision 5-a specifies that the complainant
shall have the burden of proof that a practice being challenged would
have a discriminatory effect.
Paragraph e of the new subdivision 5-a specifies that a demonstration of
disparate impact may not be used as a defense against a claim of inten-
tional discrimination,
Section 2 of the bill sets forth the effective date.
JUSTIFICATION:
The federal Fair Housing Act (Title VIII of the Civil Rights Act of
1968) protects people from discrimination when they are renting or
buying a home, getting a mortgage, seeking housing assistance, or engag-
ing in other housing-related activities. At the state level, it is
enforced by the New York State Attorney General and the Division of
Human Rights ("DHR"). The Attorney General and DHR also can take action
against housing discrimination under the New York State Human Rights
Law,
The "disparate impact" (or "discriminatory effects") standard is essen-
tial to the enforcement of the Fair Housing Act, given that discrimi-
nation often hides behind facially neutral policies and practices.
Disparate impact is longstanding doctrine, supported by case law, that
provides for enforcement based on outcome-based evidence of housing
discrimination against protected classes, rather than requiring proof of
intent to discriminate.
The disparate impact standard was codified as a federal agency rule by
HUD during the Obama Administration. The first Trump Administration
approved a new rule to effectively repeal disparate impact and make it
far more difficult, if not impossible, to prove housing discrimination,
in late 2020, however, the U.S. District Court in Massachusetts enjoined
implementation of the Trump rule. President Biden then restored the
Obama-era rule.
While the U.S. Supreme Court upheld disparate impact in its 2015 deci-
sion in Texas v. Inclusive Communities, its 5-4 majority included
Justices Kennedy and Ginsburg, both of whom have been replaced on the
Court by more conservative justices. More broadly, in its 2024 decision
in Loper Bright Enterprises v. Raimondo, the Supreme Court overruled 40
years of precedent (established in the 1984 Chevron decision) under
which federal courts had extended deference to federal agencies' reason-
able interpretations of statutes they enforced.
In the years ahead, disparate impact is almost certain to come under
attack, either from the second Trump Administration, or through liti-
gation, or both - and, as a result, fair housing enforcement nationwide
may be jeopardized.
This bill aims to protect New Yorkers from this outcome. Despite the
role that disparate impact has historically played in housing discrimi-
nation cases brought in New York, the standard itself is not currently
codified in the Human Rights Law, By doing so, we can ensure that robust
enforcement action against housing discrimination in New York can
continue under State law, come what may in Washington and in the courts.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all cases
alleging unlawful discriminatory practices constituting housing discrim-
ination occurring on and after such effective date. Effective imme-
diately, the addition, amendment and/or repeal of any rule or regulation
necessary for the implementation of this act on its effective date are
authorized to be made on or before such effective date.
STATE OF NEW YORK
________________________________________________________________________
4040--A
2025-2026 Regular Sessions
IN ASSEMBLY
January 30, 2025
___________
Introduced by M. of A. LASHER, WRIGHT, P. CARROLL, EPSTEIN, GLICK,
GONZALEZ-ROJAS, HEVESI, HOOKS, KELLES, LEVENBERG, O'PHARROW, REYES,
SHIMSKY, TAPIA, TORRES, ZACCARO, ZINERMAN, GALLAGHER, SCHIAVONI, LEE
-- read once and referred to the Committee 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 codifying the dispa-
rate impact standard in the human rights law
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 housing discrimination under this arti-
4 cle, an unlawful discriminatory practice may be established by a prac-
5 tice's discriminatory effect, even if such practice was not motivated by
6 a discriminatory intent. The practice may still be lawful if supported
7 by a legally sufficient justification, as defined in paragraph (c) of
8 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 or creates, increases, reinforces, or
12 perpetuates segregated housing patterns because of race, creed, color,
13 national origin, citizenship or immigration status, sexual orientation,
14 gender identity or expression, military status, sex, age, disability,
15 marital status, status as a victim of domestic violence, lawful source
16 of income or familial.
17 (c) (1) A legally sufficient justification exists where the challenged
18 practice:
19 (i) is necessary to achieve one or more substantial, legitimate,
20 nondiscriminatory interests of the respondent; and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05110-04-5
A. 4040--A 2
1 (ii) those interests could not be served by another practice that has
2 a less discriminatory effect.
3 (2) A legally sufficient justification shall be supported by evidence
4 and may not be hypothetical or speculative. The burdens of proof for
5 establishing each of the two elements of a legally sufficient justifica-
6 tion are set forth in paragraph (d) of this subdivision.
7 (d) (1) The complainant shall have the burden of proving that a chal-
8 lenged practice caused or predictably will cause a discriminatory
9 effect.
10 (2) Once the complainant satisfies the burden of proof set forth in
11 subparagraph one of this paragraph, the respondent shall have the burden
12 of proving that the challenged practice is necessary to achieve one or
13 more substantial, legitimate, nondiscriminatory interests of the
14 respondent.
15 (3) If the respondent satisfies the burden of proof set forth in
16 subparagraph two of this paragraph, the complainant may still prevail
17 upon proving that the substantial, legitimate, nondiscriminatory inter-
18 ests supporting the challenged practice could be served by another prac-
19 tice that has a less discriminatory effect.
20 (e) A demonstration that a practice is supported by a legally suffi-
21 cient justification, as defined in paragraph (c) of this subdivision,
22 may not be used as a defense against a claim of intentional discrimi-
23 nation.
24 (f) Nothing in this subdivision shall be construed or interpreted as
25 limiting, restricting, overriding, or supplanting any broader interpre-
26 tation of the discriminatory practices described in this article or the
27 availability of liability under this article.
28 § 2. This act shall take effect immediately and shall apply to all
29 cases alleging unlawful discriminatory practices constituting housing
30 discrimination occurring on and after such effective date. Effective
31 immediately, the addition, amendment and/or repeal of any rule or regu-
32 lation necessary for the implementation of this act on its effective
33 date are authorized to be made on or before such effective date.
