On December 19, 2025, the New York State Human Rights Law was extended by S8338, in adding a new subdivision 5-a to Executive Law 296, which provides for proving discrimination in employment without discriminatory intent, just discriminatory effect. Under the law, a discriminatory effect means that a practice "actually or predictably results in a disparate impact on a group of persons, because of their membership in a class protected under this section."
To prove a case under subdivision 5-a, known as disparate impact discrimination, there is now a burden shifting formula:
- First, the Complainant must prove that "a challenged practice caused or predictably will cause a discriminatory effect."
- Second, the Respondent must prove "that the challenged practice is job related for the position in question and consistent with business necessity."
- Third, the Complaint must prove "that the business necessity could be served by another practice that has a less discriminatory effect."
If a workplace policy disproportionately harms a protected group, intent no longer matters. Talk to Lieb at Law about your exposure or your claim.
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