BILL NUMBER: S4467

SPONSOR: MAYER
 
TITLE OF BILL:

An act to amend the executive law, in relation to clarifying the stand-
ard for disparate treatment 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 292 of the executive law by adding a new
subsection to clarify that the terms "because of" and "because" in
disparate treatment cases mean the unlawful motive was a motivating
factor, and that disparate impact method of proving liability shall not
be precluded or limited as a result.

Section 2 provides the effective date.
              

 
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:

New bill.

 
EFFECTIVE DATE:
This act shall take effect immediately.

                                 
BILL NUMBER: S4467B

SPONSOR: MAYER
 
TITLE OF BILL:

An act to amend the executive law, in relation to clarifying the stand-
ard for disparate treatment claims

 
PURPOSE OR GENERAL IDEA OF BILL:

To expand protections against retaliation and age discrimination by
clarifying that discrimination need only be a "motivating factor" to be
illegal.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends section 292 of the executive law by adding a new
subsection to clarify that the terms "because of," "because," and "by
reason of" in disparate treatment cases, including retaliation cases,
means the unlawful motive was a motivating factor, and that disparate
impact method of proving liability shall not be precluded or limited as
a result. The section also provides a definition of motivating factor.
              

Section 2 provides the effective date.

 
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:

S7292 (2021-22): Passed Senate

 
EFFECTIVE DATE:
This act shall take effect immediately.

                                 
BILL NUMBER: S4467C

SPONSOR: MAYER
 
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 and age discrimination by
clarifying that discrimination 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
subsection 23 to clarify that in an intentional discrimination or retal-
iation claim under this article it shall be sufficient to demonstrate
that the unlawful motivation was a motivating factor, and not "the sole
motivating factor" or the "but for cause."

              

Section 2 provides the effective date.

 
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:

S7292 (2021-22): Passed Senate

 
EFFECTIVE DATE:
This act shall take effect immediately.