BILL NUMBER: S2447

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:

S4467C/ A1396B (2023-24): Passed Senate; Reported and Referred to Rules
in Assembly

S7292/A8274 (2021-22): Passed Senate; Referred to Governmental Oper-
ations in Assembly

 
EFFECTIVE DATE:
This act shall take effect immediately.