Is McDonnell Douglas Dead in NYS' Human Rights Law?

On December 19, 2025, NYS enacted A4040A and S8338, which defines standards for disparate impact discrimination claims in housing and employment respectively, but each also slipped in an easter egg, at new Executive Law 296(5-a)(e), which dramatically changes how disparate treatment discrimination claims will be defended under state law. Specifically, the subsection provides that "[a] demonstration that a practice is supported by a legally sufficient justification, as defined in paragraph (c) of this subdivision, may not be used as a defense against a claim of intentional discrimination." To be certain, under McDonnell Douglas Burden Shifting, which has been utilized to prove intentional discrimination since 1973, the defense of a case was the submission of proof of a non-discriminatory reason for the challenged act. It appears that defense is now dead in NYS - this is a seismic change in NYS discrimination law with ripples unknown. 

If you’re bringing or defending a discrimination case in New York, the rules just changed. Speak with Lieb at Law before you rely on outdated defenses.

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Newsmax: Attorney Andrew Lieb Talks About Mental Illness & Whether It's An Excuse For Being Late To Your Job

Attorney Andrew Lieb joined a Newsmax panel discussion about chronic tardiness at the workplace.

To qualify for accommodations under the Americans with Disabilities Act (ADA), a condition must be a statutorily recognized disability. Currently, chronic tardiness related to mental health doesn't meet this criterion.

If recognized, it must then be proven that the employer doesn't face undue hardship due to the employee's unpredictable timekeeping.

Lieb advised employers against bending rules for certain groups to avoid creating a reverse discrimination scenario. He advocated for strict, fair policies that benefit all employees and ensure genuine accommodations for recognized disabilities aren't undermined.

Newsy: Employment Discrimination & Quiet Quitting. Analysis with Attorney Andrew Lieb

 Attorney Andrew Lieb discusses employment discrimination in the quiet workplace environment including quiet quitting and quiet firing on Newsy.