LBD06818-05-4
S. 2440--B 2
acting upon applications for its services or in referring an applicant
or applicants to an employer or employers.
(c) For a labor organization, because of the age, race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, HEIGHT, WEIGHT,
disability, predisposing genetic characteristics, familial status, mari-
tal status, or status as a victim of domestic violence, of any individ-
ual, to exclude or to expel from its membership such individual or to
discriminate in any way against any of its members or against any
employer or any individual employed by an employer.
(d) For any employer or employment agency to print or circulate or
cause to be printed or circulated any statement, advertisement or publi-
cation, or to use any form of application for employment or to make any
inquiry in connection with prospective employment, which expresses
directly or indirectly, any limitation, specification or discrimination
as to age, race, creed, color, national origin, citizenship or immi-
gration status, sexual orientation, gender identity or expression, mili-
tary status, sex, HEIGHT, WEIGHT, disability, predisposing genetic char-
acteristics, familial status, marital status, or status as a victim of
domestic violence, or any intent to make any such limitation, specifica-
tion or discrimination, unless based upon a bona fide occupational qual-
ification; provided, however, that neither this paragraph nor any
provision of this chapter or other law shall be construed to prohibit
the department of civil service or the department of personnel of any
city containing more than one county from requesting information from
applicants for civil service examinations concerning any of the afore-
mentioned characteristics, other than sexual orientation, for the
purpose of conducting studies to identify and resolve possible problems
in recruitment and testing of members of minority groups to ensure the
fairest possible and equal opportunities for employment in the civil
service for all persons, regardless of age, race, creed, color, national
origin, citizenship or immigration status, sexual orientation or gender
identity or expression, military status, sex, HEIGHT, WEIGHT, disabili-
ty, predisposing genetic characteristics, familial status, or marital
status.
(h) (1) For an employer, licensing agency, employment agency or labor
organization to subject any individual to harassment because of an indi-
vidual's age, race, creed, color, national origin, citizenship or immi-
gration status, sexual orientation, gender identity or expression, mili-
tary status, sex, HEIGHT, WEIGHT, disability, predisposing genetic
characteristics, familial status, marital status, status as a victim of
domestic violence, or because the individual has opposed any practices
forbidden under this article or because the individual has filed a
complaint, testified or assisted in any proceeding under this article,
regardless of whether such harassment would be considered severe or
pervasive under precedent applied to harassment claims. Such harassment
is an unlawful discriminatory practice when it subjects an individual to
inferior terms, conditions or privileges of employment because of the
individual's membership in one or more of these protected categories.
The fact that such individual did not make a complaint about the harass-
ment to such employer, licensing agency, employment agency or labor
organization shall not be determinative of whether such employer,
licensing agency, employment agency or labor organization shall be
liable. Nothing in this section shall imply that an employee must demon-
strate the existence of an individual to whom the employee's treatment
must be compared. It shall be an affirmative defense to liability under
S. 2440--B 3
this subdivision that the harassing conduct does not rise above the
level of what a reasonable victim of discrimination with the same
protected characteristic or characteristics would consider petty slights
or trivial inconveniences.
(2) THE PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
SHALL NOT APPLY TO AN ACTION BY AN EMPLOYER, LICENSING AGENCY, EMPLOY-
MENT AGENCY, OR LABOR ORGANIZATION BASED ON A PERSON'S HEIGHT OR WEIGHT
WHEN SUCH ACTION IS REQUIRED BY FEDERAL LAW OR REGULATION. NOTHING IN
THIS SUBDIVISION SHALL BE CONSTRUED TO PREVENT ALTERNATIVE ACTIONS
REASONABLY TAKEN BY AN EMPLOYER, LICENSING AGENCY, EMPLOYMENT AGENCY, OR
LABOR ORGANIZATION TO ALLOW PERSONS WHO DO NOT MEET OCCUPATIONAL HEIGHT
OR WEIGHT CRITERIA TO PERFORM THE ESSENTIAL REQUISITES AND/OR NORMAL
OPERATIONS OF A JOB. IN INSTANCES WHERE AN EMPLOYER, LICENSING AGENCY,
EMPLOYMENT AGENCY, OR LABOR ORGANIZATION'S ACTION IS NOT REQUIRED BY LAW
OR REGULATION AS DESCRIBED IN THIS PARAGRAPH, IT SHALL BE AN AFFIRMATIVE
DEFENSE THAT AN ACTION WAS TAKEN BECAUSE THERE WERE NO AVAILABLE ALTER-
NATIVE ACTIONS THE ENTITY COULD HAVE TAKEN THAT COULD HAVE REASONABLY
ALLOWED THE PERSON TO PERFORM THE ESSENTIAL REQUISITES AND/OR NORMAL
OPERATIONS OF THE JOB.
§ 2. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296 of
the executive law, as separately amended by chapters 202 and 748 of the
laws of 2022, are amended and a new paragraph (e) is added to read as
follows:
(b) To deny to or withhold from any person because of race, creed,
color, national origin, citizenship or immigration status, sexual orien-
tation, gender identity or expression, military status, sex, HEIGHT,
WEIGHT, age, disability, familial status, marital status, or status as a
victim of domestic violence, the right to be admitted to or participate
in a guidance program, an apprenticeship training program, on-the-job
training program, executive training program, or other occupational
training or retraining program;
(c) To discriminate against any person in [his or her] pursuit of such
programs or to discriminate against such a person in the terms, condi-
tions or privileges of such programs because of race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, HEIGHT, WEIGHT,
age, disability, familial status, marital status, or status as a victim
of domestic violence;
(d) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of applica-
tion for such programs or to make any inquiry in connection with such
program which expresses, directly or indirectly, any limitation, spec-
ification or discrimination as to race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, sex, HEIGHT, WEIGHT, age, disability,
familial status, marital status, or status as a victim of domestic
violence, or any intention to make any such limitation, specification or
discrimination, unless based on a bona fide occupational qualification.
(E) THE PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
SHALL NOT APPLY TO AN ACTION BY AN EMPLOYER, LABOR ORGANIZATION, EMPLOY-
MENT AGENCY OR ANY JOINT LABOR-MANAGEMENT COMMITTEE CONTROLLING APPREN-
TICE TRAINING PROGRAMS BASED ON A PERSON'S HEIGHT OR WEIGHT WHEN SUCH
ACTION IS REQUIRED BY FEDERAL LAW OR REGULATION. NOTHING IN THIS SUBDI-
VISION SHALL BE CONSTRUED TO PREVENT ALTERNATIVE ACTIONS REASONABLY
TAKEN BY AN EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY OR ANY JOINT
LABOR-MANAGEMENT COMMITTEE CONTROLLING APPRENTICE TRAINING PROGRAMS TO
S. 2440--B 4
ALLOW PERSONS WHO DO NOT MEET PROGRAMMATIC HEIGHT OR WEIGHT CRITERIA TO
PERFORM THE ESSENTIAL REQUISITES AND/OR NORMAL OPERATIONS OF A GUIDANCE
PROGRAM, AN APPRENTICESHIP TRAINING PROGRAM, ON-THE-JOB TRAINING
PROGRAM, EXECUTIVE TRAINING PROGRAM, OR OTHER OCCUPATIONAL TRAINING
OR RETRAINING PROGRAM. IN INSTANCES WHERE AN EMPLOYER, LABOR ORGANIZA-
TION, EMPLOYMENT AGENCY OR ANY JOINT LABOR-MANAGEMENT COMMITTEE CONTROL-
LING APPRENTICE TRAINING PROGRAMS' ACTION IS NOT REQUIRED BY LAW OR
REGULATION AS DESCRIBED IN THIS PARAGRAPH, IT SHALL BE AN AFFIRMATIVE
DEFENSE THAT AN ACTION WAS TAKEN BECAUSE THERE WERE NO AVAILABLE ALTER-
NATIVE ACTIONS THE ENTITY COULD HAVE TAKEN THAT COULD HAVE REASONABLY
ALLOWED THE PERSON TO PERFORM THE ESSENTIAL REQUISITES AND/OR NORMAL
OPERATIONS OF THE GUIDANCE PROGRAM, APPRENTICESHIP TRAINING PROGRAM,
ON-THE-JOB TRAINING PROGRAM, EXECUTIVE TRAINING PROGRAM, OR OTHER OCCU-
PATIONAL TRAINING OR RETRAINING PROGRAM.
§ 3. Paragraphs (a) and (b) of subdivision 2 of section 296 of the
executive law, paragraph (a) as separately amended by chapters 202 and
748 of the laws of 2022 and paragraph (b) as amended by chapter 166 of
the laws of 2000, are amended and a new paragraph (f) is added to read
as follows:
(a) It shall be an unlawful discriminatory practice for any person,
being the owner, lessee, proprietor, manager, superintendent, agent or
employee of any place of public accommodation, resort or amusement,
because of the race, creed, color, national origin, citizenship or immi-
gration status, sexual orientation, gender identity or expression, mili-
tary status, sex, HEIGHT, WEIGHT, disability, marital status, or status
as a victim of domestic violence, of any person, directly or indirectly,
to refuse, withhold from or deny to such person any of the accommo-
dations, advantages, facilities or privileges thereof, including the
extension of credit, or, directly or indirectly, to publish, circulate,
issue, display, post or mail any written or printed communication,
notice or advertisement, to the effect that any of the accommodations,
advantages, facilities and privileges of any such place shall be
refused, withheld from or denied to any person on account of race,
creed, color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex,
HEIGHT, WEIGHT, disability or marital status, or that the patronage or
custom thereat of any person of or purporting to be of any particular
race, creed, color, national origin, citizenship or immigration status,
sexual orientation, gender identity or expression, military status, sex
or marital status, or having a disability is unwelcome, objectionable or
not acceptable, desired or solicited.
(b) Nothing in this subdivision shall be construed to prevent the
barring of any person, because of the sex of such person, from places of
public accommodation, resort or amusement if the division grants an
exemption based on bona fide considerations of public policy; nor shall
this subdivision apply to the rental of rooms in a housing accommodation
which restricts such rental to individuals of one sex. NOTHING IN THIS
SUBDIVISION SHALL BE CONSTRUED TO PREVENT THE BARRING OF ANY PERSON,
BECAUSE OF HEIGHT OR WEIGHT OF SUCH PERSON, FROM PLACES OF AMUSEMENT FOR
PURPOSES OF COMPLIANCE WITH ANY REASONABLE AMUSEMENT INDUSTRY SAFETY
STANDARDS.
(F) THE PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
SHALL NOT APPLY TO AN ACTION BY ANY PERSON, BEING THE OWNER, LESSEE,
PROPRIETOR, MANAGER, SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY PLACE OF
PUBLIC ACCOMMODATION, RESORT OR AMUSEMENT, BASED ON A PERSON'S HEIGHT OR
WEIGHT WHEN SUCH ACTION IS REQUIRED BY FEDERAL LAW OR REGULATION, OR
S. 2440--B 5
REQUIRED BY REASONABLE STATE SAFETY LAW OR REGULATION. NOTHING IN THIS
SUBDIVISION SHALL BE CONSTRUED TO PREVENT ALTERNATIVE ACTIONS REASONABLY
TAKEN BY ANY PERSON, BEING THE OWNER, LESSEE, PROPRIETOR, MANAGER,
SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY PLACE OF PUBLIC ACCOMMODATION,
RESORT OR AMUSEMENT, TO ALLOW PERSONS WHO DO NOT MEET HEIGHT OR WEIGHT
CRITERIA NECESSARY FOR THE NORMAL OPERATIONS OF A PARTICULAR PLACE OR
PROVIDER OF ACCOMMODATION, OR A CATEGORY OF SUCH PLACES OR PROVIDERS, TO
USE OR ENJOY THE ACCOMMODATIONS, ADVANTAGES, SERVICES, FACILITIES, OR
PRIVILEGES OF THE PLACE OR PROVIDER OF PUBLIC ACCOMMODATION. IN
INSTANCES WHERE ANY PERSON, BEING THE OWNER, LESSEE, PROPRIETOR, MANAG-
ER, SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY PLACE OF PUBLIC ACCOMMO-
DATION, RESORT OR AMUSEMENT, ACTION IS NOT REQUIRED BY LAW OR REGULATION
AS DESCRIBED IN THIS PARAGRAPH, IT SHALL BE AN AFFIRMATIVE DEFENSE THAT
AN ACTION WAS TAKEN BECAUSE THERE WERE NO AVAILABLE ALTERNATIVE ACTIONS
THE ENTITY COULD HAVE TAKEN THAT COULD HAVE REASONABLY ALLOWED THE
PERSON TO USE OR ENJOY THE ACCOMMODATIONS, ADVANTAGES, SERVICES, FACILI-
TIES, OR PRIVILEGES OF THE PLACE OR PROVIDER OF PUBLIC ACCOMMODATION.
§ 4. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section
296 of the executive law, as separately amended by chapters 202 and 748
of the laws of 2022, are amended to read as follows:
(a) To refuse to sell, rent or lease or otherwise to deny to or with-
hold from any person or group of persons such housing accommodations
because of the race, creed, color, disability, national origin, citizen-
ship or immigration status, sexual orientation, gender identity or
expression, military status, age, sex, HEIGHT, WEIGHT, marital status,
status as a victim of domestic violence, lawful source of income or
familial status of such person or persons, or to represent that any
housing accommodation or land is not available for inspection, sale,
rental or lease when in fact it is so available.
(b) To discriminate against any person because of [his or her] race,
creed, color, disability, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, age, sex, HEIGHT, WEIGHT, marital status, status as a victim of
domestic violence, lawful source of income or familial status in the
terms, conditions or privileges of any publicly-assisted housing accom-
modations or in the furnishing of facilities or services in connection
therewith.
(c) To cause to be made any written or oral inquiry or record concern-
ing the race, creed, color, disability, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
membership in the reserve armed forces of the United States or in the
organized militia of the state, age, sex, HEIGHT, WEIGHT, marital
status, status as a victim of domestic violence, lawful source of income
or familial status of a person seeking to rent or lease any publicly-as-
sisted housing accommodation; provided, however, that nothing in this
subdivision shall prohibit a member of the reserve armed forces of the
United States or in the organized militia of the state from voluntarily
disclosing such membership.
(c-1) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of applica-
tion for the purchase, rental or lease of such housing accommodation or
to make any record or inquiry in connection with the prospective
purchase, rental or lease of such a housing accommodation which
expresses, directly or indirectly, any limitation, specification or
discrimination as to race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
S. 2440--B 6
military status, sex, HEIGHT, WEIGHT, age, disability, marital status,
status as a victim of domestic violence, lawful source of income or
familial status, or any intent to make any such limitation, specifica-
tion or discrimination.
§ 5. Subdivisions 3-b, 4 and 13 of section 296 of the executive law,
as separately amended by chapters 202 and 748 of the laws of 2022, are
amended to read as follows:
3-b. It shall be an unlawful discriminatory practice for any real
estate broker, real estate salesperson or employee or agent thereof or
any other individual, corporation, partnership or organization for the
purpose of inducing a real estate transaction from which any such person
or any of its stockholders or members may benefit financially, to repre-
sent that a change has occurred or will or may occur in the composition
with respect to race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, HEIGHT, WEIGHT, disability, marital status, status
as a victim of domestic violence, or familial status of the owners or
occupants in the block, neighborhood or area in which the real property
is located, and to represent, directly or indirectly, that this change
will or may result in undesirable consequences in the block, neighbor-
hood or area in which the real property is located, including but not
limited to the lowering of property values, an increase in criminal or
anti-social behavior, or a decline in the quality of schools or other
facilities.
4. (A) It shall be an unlawful discriminatory practice for an educa-
tional institution to deny the use of its facilities to any person
otherwise qualified, or to permit the harassment of any student or
applicant, by reason of [his] race, color, religion, disability,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, HEIGHT, WEIGHT,
age, marital status, or status as a victim of domestic violence, except
that any such institution which establishes or maintains a policy of
educating persons of one sex exclusively may admit students of only one
sex.
(B) THE PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
SHALL NOT APPLY TO AN ACTION BY AN EDUCATIONAL INSTITUTION BASED ON A
PERSON'S HEIGHT OR WEIGHT WHEN SUCH ACTION IS REQUIRED BY FEDERAL LAW OR
REGULATION. NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO PREVENT
ALTERNATIVE ACTIONS REASONABLY TAKEN BY AN EDUCATIONAL INSTITUTION TO
ALLOW PERSONS WHO DO NOT MEET HEIGHT OR WEIGHT CRITERIA TO PARTICIPATE
IN EDUCATIONAL INSTITUTION PROGRAMS, SUCH AS ATHLETIC PROGRAMS OR OTHER
EXTRACURRICULAR PROGRAMS. IN INSTANCES WHERE AN EDUCATIONAL FACILITY'S
ACTION IS NOT REQUIRED BY LAW OR REGULATION AS DESCRIBED IN THIS PARA-
GRAPH, IT SHALL BE AN AFFIRMATIVE DEFENSE THAT AN ACTION WAS TAKEN
BECAUSE THERE WERE NO AVAILABLE ALTERNATIVE ACTIONS THE ENTITY COULD
HAVE TAKEN THAT COULD HAVE REASONABLY ALLOWED THE PERSON TO PARTICIPATE
IN AN EDUCATIONAL INSTITUTION'S PROGRAM.
13. It shall be an unlawful discriminatory practice (i) for any person
to boycott or blacklist, or to refuse to buy from, sell to or trade
with, or otherwise discriminate against any person, because of the race,
creed, color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex,
HEIGHT, WEIGHT, status as a victim of domestic violence, disability, or
familial status, or of such person, or of such person's partners,
members, stockholders, directors, officers, managers, superintendents,
agents, employees, business associates, suppliers or customers, or (ii)
S. 2440--B 7
for any person wilfully to do any act or refrain from doing any act
which enables any such person to take such action. This subdivision
shall not apply to:
(a) Boycotts connected with labor disputes; or
(b) Boycotts to protest unlawful discriminatory practices.
§ 6. Paragraphs (a), (b), (c) and (d) of subdivision 5 of section 296
of the executive law, as separately amended by chapters 202 and 748 of
the laws of 2022, are amended to read as follows:
(a) It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, assignee, or managing agent of, or other person
having the right to sell, rent or lease a housing accommodation,
constructed or to be constructed, or any agent or employee thereof:
(1) To refuse to sell, rent, lease or otherwise to deny to or withhold
from any person or group of persons such a housing accommodation because
of the race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, HEIGHT, WEIGHT, age, disability, marital status, status as
a victim of domestic violence, lawful source of income or familial
status of such person or persons, or to represent that any housing
accommodation or land is not available for inspection, sale, rental or
lease when in fact it is so available.
(2) To discriminate against any person because of race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, HEIGHT, WEIGHT,
age, disability, marital status, status as a victim of domestic
violence, lawful source of income or familial status in the terms,
conditions or privileges of the sale, rental or lease of any such hous-
ing accommodation or in the furnishing of facilities or services in
connection therewith.
(3) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of applica-
tion for the purchase, rental or lease of such housing accommodation or
to make any record or inquiry in connection with the prospective
purchase, rental or lease of such a housing accommodation which
expresses, directly or indirectly, any limitation, specification or
discrimination as to race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, HEIGHT, WEIGHT, age, disability, marital status,
status as a victim of domestic violence, lawful source of income or
familial status, or any intent to make any such limitation, specifica-
tion or discrimination.
(4) (i) The provisions of subparagraphs one and two of this paragraph
shall not apply (1) to the rental of a housing accommodation in a build-
ing which contains housing accommodations for not more than two families
living independently of each other, if the owner resides in one of such
housing accommodations, (2) to the restriction of the rental of all
rooms in a housing accommodation to individuals of the same sex or (3)
to the rental of a room or rooms in a housing accommodation, if such
rental is by the occupant of the housing accommodation or by the owner
of the housing accommodation and the owner resides in such housing
accommodation or (4) solely with respect to age and familial status to
the restriction of the sale, rental or lease of housing accommodations
exclusively to persons sixty-two years of age or older and the spouse of
any such person, or for housing intended and operated for occupancy by
at least one person fifty-five years of age or older per unit. In deter-
mining whether housing is intended and operated for occupancy by persons
S. 2440--B 8
fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C. 3607
(b) (2) (c)) of the federal Fair Housing Act of 1988, as amended, shall
apply. However, such rental property shall no longer be exempt from the
provisions of subparagraphs one and two of this paragraph if there is
unlawful discriminatory conduct pursuant to subparagraph three of this
paragraph.
(ii) The provisions of subparagraphs one, two, and three of this para-
graph shall not apply (1) to the restriction of the rental of all rooms
in a housing accommodation to individuals of the same sex, (2) to the
rental of a room or rooms in a housing accommodation, if such rental is
by the occupant of the housing accommodation or by the owner of the
housing accommodation and the owner resides in such housing accommo-
dation, or (3) solely with respect to age and familial status to the
restriction of the sale, rental or lease of housing accommodations
exclusively to persons sixty-two years of age or older and the spouse of
any such person, or for housing intended and operated for occupancy by
at least one person fifty-five years of age or older per unit. In deter-
mining whether housing is intended and operated for occupancy by persons
fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C. 3607
(b) (2) (c)) of the federal Fair Housing Act of 1988, as amended, shall
apply.
(b) It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, or managing agent of, or other person having the
right of ownership or possession of or the right to sell, rent or lease,
land or commercial space:
(1) To refuse to sell, rent, lease or otherwise deny to or withhold
from any person or group of persons land or commercial space because of
the race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, HEIGHT, WEIGHT, age, disability, marital status, status as
a victim of domestic violence, or familial status of such person or
persons, or to represent that any housing accommodation or land is not
available for inspection, sale, rental or lease when in fact it is so
available;
(2) To discriminate against any person because of race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, HEIGHT, WEIGHT,
age, disability, marital status, status as a victim of domestic
violence, or familial status in the terms, conditions or privileges of
the sale, rental or lease of any such land or commercial space; or in
the furnishing of facilities or services in connection therewith;
(3) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of applica-
tion for the purchase, rental or lease of such land or commercial space
or to make any record or inquiry in connection with the prospective
purchase, rental or lease of such land or commercial space which
expresses, directly or indirectly, any limitation, specification or
discrimination as to race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, HEIGHT, WEIGHT, age, disability, marital status,
status as a victim of domestic violence, or familial status; or any
intent to make any such limitation, specification or discrimination.
(4) With respect to age and familial status, the provisions of this
paragraph shall not apply to the restriction of the sale, rental or
lease of land or commercial space exclusively to persons fifty-five
years of age or older and the spouse of any such person, or to the
S. 2440--B 9
restriction of the sale, rental or lease of land to be used for the
construction, or location of housing accommodations exclusively for
persons sixty-two years of age or older, or intended and operated for
occupancy by at least one person fifty-five years of age or older per
unit. In determining whether housing is intended and operated for occu-
pancy by persons fifty-five years of age or older, Sec. 807(b) (2) (c)
(42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988, as
amended, shall apply.
(c) It shall be an unlawful discriminatory practice for any real
estate broker, real estate salesperson or employee or agent thereof:
(1) To refuse to sell, rent or lease any housing accommodation, land
or commercial space to any person or group of persons or to refuse to
negotiate for the sale, rental or lease, of any housing accommodation,
land or commercial space to any person or group of persons because of
the race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, HEIGHT, WEIGHT, age, disability, marital status, status as
a victim of domestic violence, lawful source of income or familial
status of such person or persons, or to represent that any housing
accommodation, land or commercial space is not available for inspection,
sale, rental or lease when in fact it is so available, or otherwise to
deny or withhold any housing accommodation, land or commercial space or
any facilities of any housing accommodation, land or commercial space
from any person or group of persons because of the race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, HEIGHT, WEIGHT,
age, disability, marital status, lawful source of income or familial
status of such person or persons.
(2) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of applica-
tion for the purchase, rental or lease of any housing accommodation,
land or commercial space or to make any record or inquiry in connection
with the prospective purchase, rental or lease of any housing accommo-
dation, land or commercial space which expresses, directly or indirect-
ly, any limitation, specification, or discrimination as to race, creed,
color, national origin, citizenship or immigration status, sexual orien-
tation, gender identity or expression, military status, sex, HEIGHT,
WEIGHT, age, disability, marital status, status as a victim of domestic
violence, lawful source of income or familial status; or any intent to
make any such limitation, specification or discrimination.
(3) With respect to age and familial status, the provisions of this
paragraph shall not apply to the restriction of the sale, rental or
lease of any housing accommodation, land or commercial space exclusively
to persons fifty-five years of age or older and the spouse of any such
person, or to the restriction of the sale, rental or lease of any hous-
ing accommodation or land to be used for the construction or location of
housing accommodations for persons sixty-two years of age or older, or
intended and operated for occupancy by at least one person fifty-five
years of age or older per unit. In determining whether housing is
intended and operated for occupancy by persons fifty-five years of age
or older, Sec. 807 (b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the
federal Fair Housing Act of 1988, as amended, shall apply.
(d) It shall be an unlawful discriminatory practice for any real
estate board, because of the race, creed, color, national origin, citi-
zenship or immigration status, sexual orientation, gender identity or
expression, military status, age, sex, HEIGHT, WEIGHT, disability, mari-
S. 2440--B 10
tal status, status as a victim of domestic violence, lawful source of
income or familial status of any individual who is otherwise qualified
for membership, to exclude or expel such individual from membership, or
to discriminate against such individual in the terms, conditions and
privileges of membership in such board.
§ 7. Subdivisions 1, 2 and 3 of section 296-a of the executive law, as
separately amended by chapters 202 and 748 of the laws of 2022, are
amended to read as follows:
1. It shall be an unlawful discriminatory practice for any creditor or
any officer, agent or employee thereof:
a. In the case of applications for credit with respect to the
purchase, acquisition, construction, rehabilitation, repair or mainte-
nance of any housing accommodation, land or commercial space to discrim-
inate against any such applicant because of the race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, age, sex, HEIGHT,
WEIGHT, marital status, status as a victim of domestic violence, disa-
bility, or familial status of such applicant or applicants or any
member, stockholder, director, officer or employee of such applicant or
applicants, or of the prospective occupants or tenants of such housing
accommodation, land or commercial space, in the granting, withholding,
extending or renewing, or in the fixing of the rates, terms or condi-
tions of, any such credit;
b. To discriminate in the granting, withholding, extending or renew-
ing, or in the fixing of the rates, terms or conditions of, any form of
credit, on the basis of race, creed, color, national origin, citizenship
or immigration status, sexual orientation, gender identity or
expression, military status, age, sex, HEIGHT, WEIGHT, marital status,
status as a victim of domestic violence, disability, or familial status;
c. To use any form of application for credit or use or make any record
or inquiry which expresses, directly or indirectly, any limitation,
specification, or discrimination as to race, creed, color, national
origin, citizenship or immigration status, sexual orientation, gender
identity or expression, military status, age, sex, HEIGHT, WEIGHT, mari-
tal status, status as a victim of domestic violence, disability, or
familial status;
d. To make any inquiry of an [applicant concerning his or her] APPLI-
CANT'S capacity to reproduce, or [his or her] SUCH APPLICANT'S use or
advocacy of any form of birth control or family planning;
e. To refuse to consider sources of an applicant's income or to
subject an applicant's income to discounting, in whole or in part,
because of an applicant's race, creed, color, national origin, citizen-
ship or immigration status, sexual orientation, gender identity or
expression, military status, age, sex, HEIGHT, WEIGHT, marital status,
status as a victim of domestic violence, childbearing potential, disa-
bility, or familial status;
f. To discriminate against a married person because such person
neither uses nor is known by the surname of [his or her] THEIR spouse.
This paragraph shall not apply to any situation where the use of a
surname would constitute or result in a criminal act.
2. Without limiting the generality of subdivision one of this section,
it shall be considered discriminatory if, because of an applicant's or
class of applicants' race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, age, sex, HEIGHT, WEIGHT, marital status, status as a
victim of domestic violence, disability, or familial status, (i) an
S. 2440--B 11
applicant or class of applicants is denied credit in circumstances where
other applicants of like overall credit worthiness are granted credit,
or (ii) special requirements or conditions, such as requiring co-obli-
gors or reapplication upon marriage, are imposed upon an applicant or
class of applicants in circumstances where similar requirements or
conditions are not imposed upon other applicants of like overall credit
worthiness.
3. It shall not be considered discriminatory if credit differen-
tiations or decisions are based upon factually supportable, objective
differences in applicants' overall credit worthiness, which may include
reference to such factors as current income, assets and prior credit
history of such applicants, as well as reference to any other relevant
factually supportable data; provided, however, that no creditor shall
consider, in evaluating the credit worthiness of an applicant, aggregate
statistics or assumptions relating to race, creed, color, national
origin, citizenship or immigration status, sexual orientation, gender
identity or expression, military status, sex, HEIGHT, WEIGHT, marital
status, status as a victim of domestic violence or disability, or to the
likelihood of any group of persons bearing or rearing children, or for
that reason receiving diminished or interrupted income in the future.
§ 8. Subdivision 2 and paragraph b of subdivision 3 of section 296-c
of the executive law, subdivision 2 as separately amended by chapters
202 and 748 of the laws of 2022, paragraphs a, b, and c of subdivision 2
and paragraph b of subdivision 3 as amended by chapter 305 of the laws
of 2023, are amended to read as follows:
2. It shall be an unlawful discriminatory practice for an employer to:
a. refuse to hire or employ or to bar or to discharge from internship
an intern or to discriminate against such intern in terms, conditions or
privileges of employment as an intern because of the intern's age, race,
creed, color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex,
HEIGHT, WEIGHT, disability, predisposing genetic characteristics, mari-
tal status, or status as a victim of domestic violence;
b. discriminate against an intern in receiving, classifying, disposing
or otherwise acting upon applications for internships because of the
intern's age, race, creed, color, national origin, citizenship or immi-
gration status, sexual orientation, gender identity or expression, mili-
tary status, sex, HEIGHT, WEIGHT, disability, predisposing genetic char-
acteristics, marital status, or status as a victim of domestic violence;
c. print or circulate or cause to be printed or circulated any state-
ment, advertisement or publication, or to use any form of application
for employment as an intern or to make any inquiry in connection with
prospective employment, which expresses directly or indirectly, any
limitation, specification or discrimination as to age, race, creed,
color, national origin, citizenship or immigration status, sexual orien-
tation, gender identity or expression, military status, sex, HEIGHT,
WEIGHT, disability, predisposing genetic characteristics, marital status
or status as a victim of domestic violence, or any intent to make any
such limitation, specification or discrimination, unless based upon a
bona fide occupational qualification; provided, however, that neither
this paragraph nor any provision of this chapter or other law shall be
construed to prohibit the department of civil service or the department
of personnel of any city containing more than one county from requesting
information from applicants for civil service internships or examina-
tions concerning any of the aforementioned characteristics, other than
sexual orientation, for the purpose of conducting studies to identify
S. 2440--B 12
and resolve possible problems in recruitment and testing of members of
minority groups to ensure the fairest possible and equal opportunities
for employment in the civil service for all persons, regardless of age,
race, creed, color, national origin, citizenship or immigration status,
sexual orientation, military status, sex, HEIGHT, WEIGHT, disability,
predisposing genetic characteristics, marital status or status as a
victim of domestic violence;
d. to discharge, expel or otherwise discriminate against any person
[because he or she] WHO has opposed any practices forbidden under this
article or [because he or she] WHO has filed a complaint, testified or
assisted in any proceeding under this article; [or]
e. to compel an intern who is pregnant to take a leave of absence,
unless the intern is prevented by such pregnancy from performing the
activities involved in the job or occupation in a reasonable manner[.];
OR
F. THE PROVISIONS OF THIS SUBDIVISION RELATING TO HEIGHT AND WEIGHT
SHALL NOT APPLY TO AN ACTION BY AN EMPLOYER BASED ON A PERSON'S HEIGHT
OR WEIGHT WHEN SUCH ACTION IS REQUIRED BY FEDERAL LAW OR REGULATION.
NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO PREVENT ALTERNATIVE
ACTIONS REASONABLY TAKEN BY AN EMPLOYER TO ALLOW PERSONS WHO DO NOT MEET
HEIGHT OR WEIGHT CRITERIA TO PERFORM THE ESSENTIAL REQUISITES AND/OR
NORMAL OPERATIONS OF AN INTERNSHIP. IN INSTANCES WHERE AN EMPLOYER IS
NOT REQUIRED BY LAW OR REGULATION AS DESCRIBED IN THIS PARAGRAPH, IT
SHALL BE AN AFFIRMATIVE DEFENSE THAT AN ACTION WAS TAKEN BECAUSE THERE
WERE NO AVAILABLE ALTERNATIVE ACTIONS THE EMPLOYER COULD HAVE TAKEN THAT
COULD HAVE REASONABLY ALLOWED THE PERSON TO PERFORM THE ESSENTIAL REQUI-
SITES AND/OR NORMAL OPERATIONS OF THE INTERNSHIP.
b. subject an intern to unwelcome harassment based on age, sex,
HEIGHT, WEIGHT, race, creed, color, sexual orientation, gender identity
or expression, military status, disability, predisposing genetic charac-
teristics, marital status, status as a victim of domestic violence,
national origin, or citizenship or immigration status, or where such
harassment has the purpose or effect of unreasonably interfering with
the intern's work performance by creating an intimidating, hostile, or
offensive working environment.
§ 9. Section 292 of the executive law is amended by adding two new
subdivisions 42 and 43 to read as follows:
42. THE TERM "WEIGHT" MEANS A NUMERICAL MEASUREMENT OF TOTAL BODY
WEIGHT, THE RATIO OF A PERSON'S WEIGHT IN RELATION TO HEIGHT, THE RATIO
OF A PERSON'S WEIGHT IN RELATION TO ANY MEASUREMENT OR MEASUREMENTS, OR
AN INDIVIDUAL'S UNIQUE PHYSICAL COMPOSITION OF WEIGHT THROUGH BODY SIZE,
SHAPE AND PROPORTIONS. WEIGHT INCLUDES MEASUREMENTS OF INDIVIDUAL BODY
COMPONENTS, SUCH AS WAIST, HIP, OR CHEST AND ANY RATIO OF SUCH BODY
MEASUREMENTS. WEIGHT ENCOMPASSES, BUT IS NOT LIMITED TO, AN IMPRESSION
OF A PERSON AS FAT OR THIN REGARDLESS OF NUMERICAL MEASUREMENT. AN INDI-
VIDUAL'S BODY SIZE, SHAPE PROPORTIONS, AND COMPOSITION MAY MAKE THEM
APPEAR FAT OR THIN REGARDLESS OF NUMERICAL WEIGHT.
43. THE TERM "HEIGHT" MEANS A NUMERICAL MEASUREMENT OF TOTAL BODY
HEIGHT, THE EXPRESSION OF A PERSON'S HEIGHT IN RELATION TO WEIGHT, THE
RATIO OF A PERSON'S HEIGHT IN RELATION TO ANY MEASUREMENT OR MEASURE-
MENTS, OR AN INDIVIDUAL'S UNIQUE PHYSICAL COMPOSITION OF HEIGHT THROUGH
BODY SIZE, SHAPE, OR PROPORTIONS. HEIGHT INCLUDES MEASUREMENTS OF INDI-
VIDUAL BODY COMPONENTS, SUCH AS LEG, TORSO, ARM, FOOT, AND NECK. HEIGHT
ENCOMPASSES, BUT IS NOT LIMITED TO, AN IMPRESSION OF A PERSON AS TALL OR
SHORT REGARDLESS OF NUMERICAL MEASUREMENT. THE LENGTH OF A PERSON'S
LIMBS IN PROPORTION TO THE PERSON'S BODY MAY CREATE THE IMPRESSION OF
S. 2440--B 13
THE PERSON AS TALL, SHORT, OR ATYPICALLY PROPORTIONED, INDEPENDENT OF
NUMERICAL MEASUREMENTS OF HEIGHT.
§ 10. This act shall not annul, alter, affect or exempt any employer
subject to the provisions of this act from complying with the laws,
ordinances, rules or regulations of any locality, except to the extent
that such laws, ordinances, rules or regulations are inconsistent with
any provision of this act, but no such law, ordinance, rule or regu-
lation shall be considered inconsistent if it affords equal or greater
protection to the employee.
§ 11. This act shall take effect on the one hundred eightieth day
after it shall have become a law. Effective immediately, 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 and completed on or before such effective date.
