There is a newer version of the New York Consolidated Laws
2012 New York Consolidated Laws
EXC - Executive
Article 15 - (290 - 301) HUMAN RIGHTS LAW
296 - Unlawful discriminatory practices.
NY Exec L § 296 (2012) What's This?
§ 296. Unlawful discriminatory practices. 1. It shall be an unlawful
discriminatory practice:
(a) For an employer or licensing agency, because of an individual's
age, race, creed, color, national origin, sexual orientation, military
status, sex, disability, predisposing genetic characteristics, marital
status, or domestic violence victim status, to refuse to hire or employ
or to bar or to discharge from employment such individual or to
discriminate against such individual in compensation or in terms,
conditions or privileges of employment.
(b) For an employment agency to discriminate against any individual
because of age, race, creed, color, national origin, sexual orientation,
military status, sex, disability, predisposing genetic characteristics,
or marital status, in receiving, classifying, disposing or otherwise
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, sexual orientation, military status, sex, disability,
predisposing genetic characteristics, or marital status of any
individual, 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
publication, 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, sexual orientation,
military status, sex, disability, predisposing genetic characteristics,
or marital status, 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 examinations concerning
any of the aforementioned 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 insure the fairest possible and equal opportunities
for employment in the civil service for all persons, regardless of age,
race, creed, color, national origin, sexual orientation, military
status, sex, disability, predisposing genetic characteristics, or
marital status.
(e) For any employer, labor organization or employment agency to
discharge, expel or otherwise discriminate against any person because he
or she has opposed any practices forbidden under this article or because
he or she has filed a complaint, testified or assisted in any proceeding
under this article.
(f) Nothing in this subdivision shall affect any restrictions upon the
activities of persons licensed by the state liquor authority with
respect to persons under twenty-one years of age.
(g) For an employer to compel an employee who is pregnant to take a
leave of absence, unless the employee is prevented by such pregnancy
from performing the activities involved in the job or occupation in a
reasonable manner.
1-a. It shall be an unlawful discriminatory practice for an employer,
labor organization, employment agency or any joint labor-management
committee controlling apprentice training programs:
(a) To select persons for an apprentice training program registered
with the state of New York on any basis other than their qualifications,
as determined by objective criteria which permit review;
(b) To deny to or withhold from any person because of race, creed,
color, national origin, sexual orientation, military status, sex, age,
disability, or marital status, 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,
conditions or privileges of such programs because of race, creed, color,
national origin, sexual orientation, military status, sex, age,
disability or marital status;
(d) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of
application for such programs or to make any inquiry in connection with
such program which expresses, directly or indirectly, any limitation,
specification or discrimination as to race, creed, color, national
origin, sexual orientation, military status, sex, age, disability or
marital status, or any intention to make any such limitation,
specification or discrimination, unless based on a bona fide
occupational qualification.
2. (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, sexual orientation,
military status, sex, or disability or marital status of any person,
directly or indirectly, to refuse, withhold from or deny to such person
any of the accommodations, 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, sexual orientation, military
status, sex, or 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, sexual orientation, 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.
(c) For the purposes of paragraph (a) of this subdivision,
"discriminatory practice" includes:
(i) a refusal to make reasonable modifications in policies, practices,
or procedures, when such modifications are necessary to afford
facilities, privileges, advantages or accommodations to individuals with
disabilities, unless such person can demonstrate that making such
modifications would fundamentally alter the nature of such facilities,
privileges, advantages or accommodations;
(ii) a refusal to take such steps as may be necessary to ensure that
no individual with a disability is excluded or denied services because
of the absence of auxiliary aids and services, unless such person can
demonstrate that taking such steps would fundamentally alter the nature
of the facility, privilege, advantage or accommodation being offered or
would result in an undue burden;
(iii) a refusal to remove architectural barriers, and communication
barriers that are structural in nature, in existing facilities, and
transportation barriers in existing vehicles and rail passenger cars
used by an establishment for transporting individuals (not including
barriers that can only be removed through the retrofitting of vehicles
or rail passenger cars by the installation of a hydraulic or other
lift), where such removal is readily achievable; and
(iv) where such person can demonstrate that the removal of a barrier
under subparagraph (iii) of this paragraph is not readily achievable, a
failure to make such facilities, privileges, advantages or
accommodations available through alternative methods if such methods are
readily achievable.
(d) For the purposes of this subdivision:
(i) "Readily achievable" means easily accomplishable and able to be
carried out without much difficulty or expense. In determining whether
an action is readily achievable, factors to be considered include:
(A) the nature and cost of the action needed under this subdivision;
(B) the overall financial resources of the facility or facilities
involved in the action; the number of persons employed at such facility;
the effect on expenses and resources or the impact otherwise of such
action upon the operation of the facility;
(C) the overall financial resources of the place of public
accommodation, resort or amusement; the overall size of the business of
such a place with respect to the number of its employees; the number,
type and location of its facilities; and
(D) the type of operation or operations of the place of public
accommodation, resort or amusement, including the composition, structure
and functions of the workforce of such place; the geographic
separateness, administrative or fiscal relationship of the facility or
facilities in question to such place.
(ii) "Auxiliary aids and services" include:
(A) qualified interpreters or other effective methods of making
aurally delivered materials available to individuals with hearing
impairments;
(B) qualified readers, taped texts or other effective methods of
making visually delivered materials available to individuals with visual
impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.
(iii) "Undue burden" means significant difficulty or expense. In
determining whether an action would result in an undue burden, factors
to be considered shall include:
(A) The nature and cost of the action needed under this article;
(B) The overall financial resources of the site or sites involved in
the action; the number of persons employed at the site; the effect on
expenses and resources; legitimate safety requirements that are
necessary for safe operation, including crime prevention measures; or
the impact otherwise of the action upon the operation of the site;
(C) The geographic separateness, and the administrative or fiscal
relationship of the site or sites in question to any parent corporation
or entity;
(D) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent corporation or
entity with respect to the number of its employees; the number, type,
and location of its facilities; and
(E) If applicable, the type of operation or operations of any parent
corporation or entity, including the composition, structure, and
functions of the workforce of the parent corporation or entity.
(e) Paragraphs (c) and (d) of this subdivision do not apply to any air
carrier, the National Railroad Passenger Corporation, or public
transportation facilities, vehicles or services owned, leased or
operated by the state, a county, city, town or village, or any agency
thereof, or by any public benefit corporation or authority.
2-a. It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, assignee, or managing agent of publicly-assisted
housing accommodations or other person having the right of ownership or
possession of or the right to rent or lease such accommodations:
(a) To refuse to sell, rent or lease or otherwise to deny to or
withhold from any person or group of persons such housing accommodations
because of the race, creed, color, disability, national origin, sexual
orientation, military status, age, sex, marital status, 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, sexual orientation, military
status, age, sex, marital status, or familial status in the terms,
conditions or privileges of any publicly-assisted housing accommodations
or in the furnishing of facilities or services in connection therewith.
(c) To cause to be made any written or oral inquiry or record
concerning the race, creed, color, disability, national origin, sexual
orientation, membership in the reserve armed forces of the United States
or in the organized militia of the state, age, sex, marital status, or
familial status of a person seeking to rent or lease any
publicly-assisted 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
application 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, sexual
orientation, military status, sex, age, disability, marital status, or
familial status, or any intent to make any such limitation,
specification or discrimination.
(d) (1) To refuse to permit, at the expense of the person with a
disability, reasonable modifications of existing premises occupied or to
be occupied by the said person, if the modifications may be necessary to
afford the said person full enjoyment of the premises, in conformity
with the provisions of the New York state uniform fire prevention and
building code, except that, in the case of a rental, the landlord may,
where it is reasonable to do so, condition permission for a modification
on the renter's agreeing to restore the interior of the premises to the
condition that existed before the modification, reasonable wear and tear
excepted.
(2) To refuse to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to
afford a person with a disability equal opportunity to use and enjoy a
dwelling, including reasonable modification to common use portions of
the dwelling, or
(3) In connection with the design and construction of covered
multi-family dwellings for first occupancy after March thirteenth,
nineteen hundred ninety-one, a failure to design and construct dwellings
in accordance with the accessibility requirements of the New York state
uniform fire prevention and building code, to provide that:
(i) The public use and common use portions of the dwellings are
readily accessible to and usable by disabled persons with disabilities;
(ii) All the doors are designed in accordance with the New York state
uniform fire prevention and building code to allow passage into and
within all premises and are sufficiently wide to allow passage by
persons in wheelchairs; and
(iii) All premises within covered multi-family dwelling units contain
an accessible route into and through the dwelling; light switches,
electrical outlets, thermostats, and other environmental controls are in
accessible locations; there are reinforcements in the bathroom walls to
allow later installation of grab bars; and there are usable kitchens and
bathrooms such that an individual in a wheelchair can maneuver about the
space, in conformity with the New York state uniform fire prevention and
building code.
(e) Nothing in this subdivision shall restrict the consideration of
age in the rental of publicly-assisted housing accommodations if the
division grants an exemption based on bona fide considerations of public
policy for the purpose of providing for the special needs of a
particular age group without the intent of prejudicing other age groups.
(f) Nothing in this subdivision shall be deemed to restrict the rental
of rooms in school or college dormitories to individuals of the same
sex.
3. (a) It shall be an unlawful discriminatory practice for an
employer, licensing agency, employment agency or labor organization to
refuse to provide reasonable accommodations to the known disabilities of
an employee, prospective employee or member in connection with a job or
occupation sought or held or participation in a training program.
(b) Nothing contained in this subdivision shall be construed to
require provision of accommodations which can be demonstrated to impose
an undue hardship on the operation of an employer's, licensing agency's,
employment agency's or labor organization's business, program or
enterprise.
In making such a demonstration with regard to undue hardship the
factors to be considered include:
(i) The overall size of the business, program or enterprise with
respect to the number of employees, number and type of facilities, and
size of budget;
(ii) The type of operation which the business, program or enterprise
is engaged in, including the composition and structure of the workforce;
and
(iii) The nature and cost of the accommodation needed.
3-a. It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency to refuse to hire or employ or
license or to bar or to terminate from employment an individual eighteen
years of age or older, or to discriminate against such individual in
promotion, compensation or in terms, conditions, or privileges of
employment, because of such individual's age.
(b) For any employer, licensing agency or employment agency to print
or circulate or cause to be printed or circulated any statement,
advertisement or publication, 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 on account of age respecting individuals
eighteen years of age or older, or any intent to make any such
limitation, specification, or discrimination.
(c) For any employer, licensing agency or employment agency to
discharge or otherwise discriminate against any person because he or she
has opposed any practices forbidden under this article or because he or
she has filed a complaint, testified or assisted in any proceeding under
this article.
(d) Notwithstanding any other provision of law, no employee shall be
subject to termination or retirement from employment on the basis of
age, except where age is a bona fide occupational qualification
reasonably necessary to the normal operation of a particular business,
where the differentiation is based on reasonable factors other than age,
or as otherwise specified in paragraphs (e) and (f) of this subdivision
or in article fourteen-A of the retirement and social security law.
(e) Nothing contained in this subdivision or in subdivision one of
this section shall be construed to prevent the compulsory retirement of
any employee who has attained sixty-five years of age, and who, for a
two-year period immediately before retirement, is employed in a bona
fide executive or a high policymaking position, if such employee is
entitled to an immediate nonforfeitable annual retirement benefit from a
pension, profit-sharing, savings, or deferred compensation plan, or any
combination of such plans, of the employer of such employee, which
equals, in the aggregate, at least forty-four thousand dollars; provided
that for the purposes of this paragraph only, the term "employer"
includes any employer as otherwise defined in this article but does not
include (i) the state of New York, (ii) a county, city, town, village or
any other political subdivision or civil division of the state, (iii) a
school district or any other governmental entity operating a public
school, college or university, (iv) a public improvement or special
district, (v) a public authority, commission or public benefit
corporation, or (vi) any other public corporation, agency,
instrumentality or unit of government which exercises governmental power
under the laws of the state. In applying the retirement benefit test of
this paragraph, if any such retirement benefit is in a form other than a
straight life annuity with no ancillary benefits, or if employees
contribute to any such plan or make rollover contributions, such benefit
shall be adjusted in accordance with rules and regulations promulgated
by the division, after an opportunity for public hearing, so that the
benefit is the equivalent of a straight life annuity with no ancillary
benefits under a plan to which employees do not contribute and under
which no rollover contributions are made.
(f) Nothing contained in this subdivision, in subdivision one of this
section or in article fourteen-A of the retirement and social security
law shall be construed to prevent the compulsory retirement of any
employee who has attained seventy years of age and is serving under a
contract for unlimited tenure, or a similar arrangement providing for
unlimited tenure, at a nonpublic institution of higher education. For
purposes of such subdivisions or article, the term "institution of
higher education" means an educational institution which (i) admits as
regular students only persons having a certificate of graduation from a
school providing secondary education, or the recognized equivalent of
such a certificate, (ii) is lawfully authorized to provide a program of
education beyond secondary education, and (iii) provides an educational
program for which it awards a bachelor's degree or provides not less
than a two-year program which is acceptable for full credit toward such
a degree.
(g) In the event of a conflict between the provisions of this
subdivision and the provisions of article fourteen-A of the retirement
and social security law, the provisions of article fourteen-A of such
law shall be controlling.
But nothing contained in this subdivision, in subdivision one of this
section or in article fourteen-A of the retirement and social security
law shall be construed to prevent the termination of the employment of
any person who, even upon the provision of reasonable accommodations, is
physically unable to perform his or her duties or to affect the
retirement policy or system of any employer where such policy or system
is not merely a subterfuge to evade the purposes of said subdivisions or
said article; nor shall anything in such subdivisions or such article be
deemed to preclude the varying of insurance coverages according to an
employee's age.
The provisions of this subdivision shall not affect any restriction
upon the activities of persons licensed by the state liquor authority
with respect to persons under twenty-one years of age.
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
represent that a change has occurred or will or may occur in the
composition with respect to race, creed, color, national origin, sexual
orientation, military status, sex, disability, marital status, 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, neighborhood 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. It shall be an unlawful discriminatory practice for an education
corporation or association which holds itself out to the public to be
non-sectarian and exempt from taxation pursuant to the provisions of
article four of the real property tax law 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, sexual orientation, military
status, sex, age or marital status, 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.
5. (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, sexual orientation, military
status, sex, age, disability, marital status, 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, sexual orientation, military status, sex, age,
disability, marital status, or familial status in the terms, conditions
or privileges of the sale, rental or lease of any such housing
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
application 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, sexual
orientation, military status, sex, age, disability, marital status, or
familial status, or any intent to make any such limitation,
specification or discrimination.
The provisions of this paragraph (a) shall not apply (1) to the rental
of a housing accommodation in a building 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 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.
(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, sexual orientation, military
status, sex, age, disability, marital status, 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, sexual orientation, military status, sex, age,
disability, marital status, 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
application 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, sexual
orientation, military status, sex, age, disability, marital status, 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
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
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.
(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, sexual orientation, military
status, sex, age, disability, marital status, 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,
sexual orientation, military status, sex, age, disability, marital
status, 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
application 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 accommodation, land or commercial space which expresses,
directly or indirectly, any limitation, specification, or discrimination
as to race, creed, color, national origin, sexual orientation, military
status, sex, age, disability, marital status, 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 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 housing 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, sexual
orientation, military status, age, sex, disability, marital status, 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.
(e) It shall be an unlawful discriminatory practice for the owner,
proprietor or managing agent of, or other person having the right to
provide care and services in, a private proprietary nursing home,
convalescent home, or home for adults, or an intermediate care facility,
as defined in section two of the social services law, heretofore
constructed, or to be constructed, or any agent or employee thereof, to
refuse to provide services and care in such home or facility to any
individual or to discriminate against any individual in the terms,
conditions, and privileges of such services and care solely because such
individual is a blind person. For purposes of this paragraph, a "blind
person" shall mean a person who is registered as a blind person with the
commission for the visually handicapped and who meets the definition of
a "blind person" pursuant to section three of chapter four hundred
fifteen of the laws of nineteen hundred thirteen entitled "An act to
establish a state commission for improving the condition of the blind of
the state of New York, and making an appropriation therefor".
(f) The provisions of this subdivision, as they relate to age, shall
not apply to persons under the age of eighteen years.
(g) It shall be an unlawful discriminatory practice for any person
offering or providing housing accommodations, land or commercial space
as described in paragraphs (a), (b), and (c) of this subdivision to make
or cause to be made any written or oral inquiry or record concerning
membership of any person in the state organized militia in relation to
the purchase, rental or lease of such housing accommodation, land, or
commercial space, provided, however, that nothing in this subdivision
shall prohibit a member of the state organized militia from voluntarily
disclosing such membership.
6. It shall be an unlawful discriminatory practice for any person to
aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this article, or to attempt to do so.
7. It shall be an unlawful discriminatory practice for any person
engaged in any activity to which this section applies to retaliate or
discriminate against any person because he or she has opposed any
practices forbidden under this article or because he or she has filed a
complaint, testified or assisted in any proceeding under this article.
8. It shall be an unlawful discriminatory practice for any party to a
conciliation agreement made pursuant to section two hundred ninety-seven
of this article to violate the terms of such agreement.
9. (a) It shall be an unlawful discriminatory practice for any fire
department or fire company therein, through any member or members
thereof, officers, board of fire commissioners or other body or office
having power of appointment of volunteer firefighters, directly or
indirectly, by ritualistic practice, constitutional or by-law
prescription, by tacit agreement among its members, or otherwise, to
deny to any individual membership in any volunteer fire department or
fire company therein, or to expel or discriminate against any volunteer
member of a fire department or fire company therein, because of the
race, creed, color, national origin, sexual orientation, military
status, sex or marital status of such individual.
(b) Upon a complaint to the division, as provided for under
subdivision one of section two hundred ninety-seven of this article, and
in the event the commissioner finds that an unlawful discriminatory
practice has been engaged in, the board of fire commissioners or other
body or office having power of appointment of volunteer firefighters
shall be served with any order required, under subdivision four of
section two hundred ninety-seven of this article, to be served on any or
all respondents requiring such respondent or respondents to cease and
desist from such unlawful discriminatory practice and to take
affirmative action. Such board shall have the duty and power to appoint
as a volunteer firefighter, notwithstanding any other statute or
provision of law or by-law of any volunteer fire company, any individual
whom the commissioner has determined to be the subject of an unlawful
discriminatory practice under this subdivision. Unless such board has
been found to have engaged in an unlawful discriminatory practice,
service upon such board of such order shall not constitute such board or
its members as a respondent nor constitute a finding of an unlawful
discriminatory practice against such board or its members.
10. (a) It shall be an unlawful discriminatory practice for any
employer, or an employee or agent thereof, to impose upon a person as a
condition of obtaining or retaining employment, including opportunities
for promotion, advancement or transfers, any terms or conditions that
would require such person to violate or forego a sincerely held practice
of his or her religion, including but not limited to the observance of
any particular day or days or any portion thereof as a sabbath or other
holy day in accordance with the requirements of his or her religion,
unless, after engaging in a bona fide effort, the employer demonstrates
that it is unable to reasonably accommodate the employee's or
prospective employee's sincerely held religious observance or practice
without undue hardship on the conduct of the employer's business.
Notwithstanding any other provision of law to the contrary, an employee
shall not be entitled to premium wages or premium benefits for work
performed during hours to which such premium wages or premium benefits
would ordinarily be applicable, if the employee is working during such
hours only as an accommodation to his or her sincerely held religious
requirements. Nothing in this paragraph or paragraph (b) of this
subdivision shall alter or abridge the rights granted to an employee
concerning the payment of wages or privileges of seniority accruing to
that employee.
(b) Except where it would cause an employer to incur an undue
hardship, no person shall be required to remain at his or her place of
employment during any day or days or portion thereof that, as a
requirement of his or her religion, he or she observes as his or her
sabbath or other holy day, including a reasonable time prior and
subsequent thereto for travel between his or her place of employment and
his or her home, provided however, that any such absence from work
shall, wherever practicable in the reasonable judgment of the employer,
be made up by an equivalent amount of time and work at some other
mutually convenient time, or shall be charged against any leave with pay
ordinarily granted, other than sick leave, provided further, however,
that any such absence not so made up or charged, may be treated by the
employer of such person as leave taken without pay.
(c) It shall be an unlawful discriminatory practice for an employer to
refuse to permit an employee to utilize leave, as provided in paragraph
(b) of this subdivision, solely because the leave will be used for
absence from work to accommodate the employee's sincerely held religious
observance or practice.
(d) As used in this subdivision: (1) "undue hardship" shall mean an
accommodation requiring significant expense or difficulty (including a
significant interference with the safe or efficient operation of the
workplace or a violation of a bona fide seniority system). Factors to be
considered in determining whether the accommodation constitutes an undue
economic hardship shall include, but not be limited to:
(i) the identifiable cost of the accommodation, including the costs of
loss of productivity and of retaining or hiring employees or
transferring employees from one facility to another, in relation to the
size and operating cost of the employer;
(ii) the number of individuals who will need the particular
accommodation to a sincerely held religious observance or practice; and
(iii) for an employer with multiple facilities, the degree to which
the geographic separateness or administrative or fiscal relationship of
the facilities will make the accommodation more difficult or expensive.
Provided, however, an accommodation shall be considered to constitute
an undue hardship if it will result in the inability of an employee to
perform the essential functions of the position in which he or she is
employed.
(2) "premium wages" shall include overtime pay and compensatory time
off, and additional remuneration for night, weekend or holiday work, or
for standby or irregular duty.
(3) "premium benefit" shall mean an employment benefit, such as
seniority, group life insurance, health insurance, disability insurance,
sick leave, annual leave, or an educational or pension benefit that is
greater than the employment benefit due the employee for an equivalent
period of work performed during the regular work schedule of the
employee.
In the case of any employer other than the state, any of its political
subdivisions or any school district, this subdivision shall not apply
where the uniform application of terms and conditions of attendance to
employees is essential to prevent undue economic hardship to the
employer. In any proceeding in which the applicability of this
subdivision is in issue, the burden of proof shall be upon the employer.
If any question shall arise whether a particular position or class of
positions is excepted from this subdivision by this paragraph, such
question may be referred in writing by any party claimed to be
aggrieved, in the case of any position of employment by the state or any
of its political subdivisions, except by any school district, to the
civil service commission, in the case of any position of employment by
any school district, to the commissioner of education, who shall
determine such question and in the case of any other employer, a party
claiming to be aggrieved may file a complaint with the division pursuant
to this article. Any such determination by the civil service commission
shall be reviewable in the manner provided by article seventy-eight of
the civil practice law and rules and any such determination by the
commissioner of education shall be reviewable in the manner and to the
same extent as other determinations of the commissioner under section
three hundred ten of the education law.
11. Nothing contained in this section shall be construed to bar any
religious or denominational institution or organization, or any
organization operated for charitable or educational purposes, which is
operated, supervised or controlled by or in connection with a religious
organization, from limiting employment or sales or rental of housing
accommodations or admission to or giving preference to persons of the
same religion or denomination or from taking such action as is
calculated by such organization to promote the religious principles for
which it is established or maintained.
12. Notwithstanding the provisions of subdivisions one, one-a and
three-a of this section, it shall not be an unlawful discriminatory
practice for an employer, employment agency, labor organization or joint
labor-management committee to carry out a plan, approved by the
division, to increase the employment of members of a minority group (as
may be defined pursuant to the regulations of the division) which has a
state-wide unemployment rate that is disproportionately high in
comparison with the state-wide unemployment rate of the general
population. Any plan approved under this subdivision shall be in writing
and the division's approval thereof shall be for a limited period and
may be rescinded at any time by the division.
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, sexual orientation, military status, sex,
or disability of such person, or of such person's partners, members,
stockholders, directors, officers, managers, superintendents, agents,
employees, business associates, suppliers or customers, or (ii) 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.
14. It shall be an unlawful discriminatory practice for any person
engaged in any activity covered by this section to discriminate against
a blind person, a hearing impaired person or a person with a disability
on the basis of his or her use of a guide dog, hearing dog or service
dog.
15. It shall be an unlawful discriminatory practice for any person,
agency, bureau, corporation or association, including the state and any
political subdivision thereof, to deny any license or employment to any
individual by reason of his or her having been convicted of one or more
criminal offenses, or by reason of a finding of a lack of "good moral
character" which is based upon his or her having been convicted of one
or more criminal offenses, when such denial is in violation of the
provisions of article twenty-three-A of the correction law. Further,
there shall be a rebuttable presumption in favor of excluding from
evidence the prior incarceration or conviction of any person, in a case
alleging that the employer has been negligent in hiring or retaining an
applicant or employee, or supervising a hiring manager, if after
learning about an applicant or employee's past criminal conviction
history, such employer has evaluated the factors set forth in section
seven hundred fifty-two of the correction law, and made a reasonable,
good faith determination that such factors militate in favor of hire or
retention of that applicant or employee.
16. It shall be an unlawful discriminatory practice, unless
specifically required or permitted by statute, for any person, agency,
bureau, corporation or association, including the state and any
political subdivision thereof, to make any inquiry about, whether in any
form of application or otherwise, or to act upon adversely to the
individual involved, any arrest or criminal accusation of such
individual not then pending against that individual which was followed
by a termination of that criminal action or proceeding in favor of such
individual, as defined in subdivision two of section 160.50 of the
criminal procedure law, or by a youthful offender adjudication, as
defined in subdivision one of section 720.35 of the criminal procedure
law, or by a conviction for a violation sealed pursuant to section
160.55 of the criminal procedure law or by a conviction which is sealed
pursuant to section 160.58 of the criminal procedure law, in connection
with the licensing, employment or providing of credit or insurance to
such individual; provided, further, that no person shall be required to
divulge information pertaining to any arrest or criminal accusation of
such individual not then pending against that individual which was
followed by a termination of that criminal action or proceeding in favor
of such individual, as defined in subdivision two of section 160.50 of
the criminal procedure law, or by a youthful offender adjudication, as
defined in subdivision one of section 720.35 of the criminal procedure
law, or by a conviction for a violation sealed pursuant to section
160.55 of the criminal procedure law, or by a conviction which is sealed
pursuant to section 160.58 of the criminal procedure law. The provisions
of this subdivision shall not apply to the licensing activities of
governmental bodies in relation to the regulation of guns, firearms and
other deadly weapons or in relation to an application for employment as
a police officer or peace officer as those terms are defined in
subdivisions thirty-three and thirty-four of section 1.20 of the
criminal procedure law; provided further that the provisions of this
subdivision shall not apply to an application for employment or
membership in any law enforcement agency with respect to any arrest or
criminal accusation which was followed by a youthful offender
adjudication, as defined in subdivision one of section 720.35 of the
criminal procedure law, or by a conviction for a violation sealed
pursuant to section 160.55 of the criminal procedure law, or by a
conviction which is sealed pursuant to section 160.58 of the criminal
procedure law.
17. Nothing in this section shall prohibit the offer and acceptance of
a discount to a person sixty-five years of age or older for housing
accommodations.
18. It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, assignee, or managing agent of, or other person
having the right of ownership of or possession of or the right to rent
or lease housing accommodations:
(1) To refuse to permit, at the expense of a person with a disability,
reasonable modifications of existing premises occupied or to be occupied
by the said person, if the modifications may be necessary to afford the
said person full enjoyment of the premises, in conformity with the
provisions of the New York state uniform fire prevention and building
code except that, in the case of a rental, the landlord may, where it is
reasonable to do so, condition permission for a modification on the
renter's agreeing to restore the interior of the premises to the
condition that existed before the modification, reasonable wear and tear
excepted.
(2) To refuse to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to
afford said person with a disability equal opportunity to use and enjoy
a dwelling, including reasonable modification to common use portions of
the dwelling, or
(3) In connection with the design and construction of covered
multi-family dwellings for first occupancy after March thirteenth,
nineteen hundred ninety-one, a failure to design and construct dwellings
in accordance with the accessibility requirements for multi-family
dwellings found in the New York state uniform fire prevention and
building code to provide that:
(i) The public use and common use portions of the dwellings are
readily accessible to and usable by persons with disabilities;
(ii) All the doors are designed in accordance with the New York state
uniform fire prevention and building code to allow passage into and
within all premises and are sufficiently wide to allow passage by
persons in wheelchairs; and
(iii) All premises within covered multi-family dwelling units contain
an accessible route into and through the dwelling; light switches,
electrical outlets, thermostats, and other environmental controls are in
accessible locations; there are reinforcements in the bathroom walls to
allow later installation of grab bars; and there are usable kitchens and
bathrooms such that an individual in a wheelchair can maneuver about the
space, in conformity with the New York state uniform fire prevention and
building code.
19. (a) Except as provided in paragraph (b) of this subdivision, it
shall be an unlawful discriminatory practice of any employer, labor
organization, employment agency, licensing agency, or its employees,
agents, or members:
(1) to directly or indirectly solicit, require, or administer a
genetic test to a person, or solicit or require information from which a
predisposing genetic characteristic can be inferred as a condition of
employment, preemployment application, labor organization membership, or
licensure; or
(2) to buy or otherwise acquire the results or interpretation of an
individual's genetic test results or information from which a
predisposing genetic characteristic can be inferred or to make an
agreement with an individual to take a genetic test or provide genetic
test results or such information.
(b) An employer may require a specified genetic test as a condition of
employment where such a test is shown to be directly related to the
occupational environment, such that the employee or applicant with a
particular genetic anomaly might be at an increased risk of disease as a
result of working in said environment.
(c) Nothing in this section shall prohibit the genetic testing of an
employee who requests a genetic test and who provides written and
informed consent to taking a genetic test for any of the following
purposes:
(1) pursuant to a workers' compensation claim;
(2) pursuant to civil litigation; or
(3) to determine the employee's susceptibility to potentially
carcinogenic, toxic, or otherwise hazardous chemicals or substances
found in the workplace environment only if the employer does not
terminate the employee or take any other action that adversely affects
any term, condition or privilege of employment pursuant to the genetic
test results.
(d) If an employee consents to genetic testing for any of the
aforementioned allowable reasons, he or she must be given and sign an
authorization of consent form which explicitly states the specific
purpose, uses and limitations of the genetic tests and the specific
traits or characteristics to be tested.
21. Nothing in this section shall prohibit the offer and acceptance of
a discount for housing accommodations to a person with a disability, as
defined in subdivision twenty-one of section two hundred ninety-two of
this article.
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