2019 New York Laws
EXC - Executive
Article 15 - Human Rights Law
296-A - Unlawful Discriminatory Practices in Relation to Credit.

Universal Citation: NY Exec L § 296-A (2019)
§ 296-a. Unlawful  discriminatory practices in relation to credit.  1.
It shall be an unlawful discriminatory practice for any creditor or  any
officer, agent or employee thereof:
  a.  In  the  case  of  applications  for  credit  with  respect to the
purchase,   acquisition,   construction,   rehabilitation,   repair   or
maintenance  of  any  housing accommodation, land or commercial space to
discriminate against any such applicant  because  of  the  race,  creed,
color,   national   origin,   sexual  orientation,  gender  identity  or
expression, military status, age, sex, marital  status,  disability,  or
familial   status  of  such  applicant  or  applicants  or  any  member,
stockholder,  director,  officer  or  employee  of  such  applicant   or
applicants,  or  of the prospective occupants or tenants of such housing
accommodation, land or commercial space, in the  granting,  withholding,
extending  or  renewing,  or  in  the  fixing  of  the  rates,  terms or
conditions of, any such credit;
  b.  To  discriminate  in  the  granting,  withholding,  extending   or
renewing,  or  in  the  fixing of the rates, terms or conditions of, any
form of credit, on the basis of race,  creed,  color,  national  origin,
sexual orientation, gender identity or expression, military status, age,
sex, marital status, disability, or familial status;
  c. To use any form of application for credit or use or make any record
or  inquiry  which  expresses,  directly  or indirectly, any limitation,
specification, or discrimination as  to  race,  creed,  color,  national
origin,  sexual  orientation,  gender  identity  or expression, military
status, age, sex, marital status, disability, or familial status;
  d. To make any inquiry of an applicant concerning his or her  capacity
to reproduce, or his or her use or advocacy of any form of birth control
or family planning;
  e.  To  refuse  to  consider  sources  of  an applicant's income or to
subject an applicant's income to  discounting,  in  whole  or  in  part,
because  of  an  applicant's race, creed, color, national origin, sexual
orientation, gender identity or expression, military status,  age,  sex,
marital status, childbearing potential, disability, or familial status;
  f.  To  discriminate  against  a  married  person  because such person
neither uses nor is known by the surname of his or her spouse.
  This paragraph shall not apply to any situation where  the  use  of  a
surname would constitute or result in a criminal act.
  2. Without limiting the generality of subdivision one of this section,
it  shall  be considered discriminatory if, because of an applicant's or
class  of  applicants'  race,  creed,  color,  national  origin,  sexual
orientation,  gender  identity or expression, military status, age, sex,
marital status or disability, or familial status, (i)  an  applicant  or
class  of  applicants  is  denied  credit  in  circumstances where other
applicants of like overall credit worthiness are granted credit, or (ii)
special requirements or conditions, such  as  requiring  co-obligors  or
reapplication  upon  marriage, are imposed upon an applicant or class of
applicants in circumstances where similar requirements or conditions are
not imposed upon other applicants of like overall credit worthiness.
  3.   It   shall   not   be   considered   discriminatory   if   credit
differentiations  or  decisions  are  based  upon factually supportable,
objective differences in applicants' overall  credit  worthiness,  which
may  include  reference  to  such  factors as current income, assets and
prior credit history of such applicants, as well  as  reference  to  any
other  relevant  factually  supportable data; provided, however, that no
creditor shall consider, in  evaluating  the  credit  worthiness  of  an
applicant,  aggregate statistics or assumptions relating to race, creed,
color,  national  origin,  sexual  orientation,   gender   identity   or
expression,  military  status,  sex, marital status or disability, or to

the likelihood of any group of persons bearing or rearing  children,  or
for  that  reason  receiving  diminished  or  interrupted  income in the
future.
  3-a.  It  shall not be an unlawful discriminatory practice to consider
age in determining credit worthiness when age  has  a  demonstrable  and
statistically   sound   relationship   to   a  determination  of  credit
worthiness.
  4. a. If so requested by an applicant for  credit,  a  creditor  shall
furnish  such  applicant  with  a  statement of the specific reasons for
rejection of the applicant's application for credit.
  b. If so requested in writing by an individual who is or was  married,
a  creditor  or  credit reporting bureau shall maintain in its records a
separate credit history for any such individual. Such  separate  history
shall  include  all  obligations as to which such bureau has notice with
respect to which any such person  is  or  was  individually  or  jointly
liable.
  5.  No  provision  of  this  section  providing  spouses  the right to
separately apply for credit,  borrow  money,  or  have  separate  credit
histories  maintained  shall  limit or foreclose the right of creditors,
under any other provision of law, to hold one spouse legally liable  for
debts incurred by the other.
  6.  Any  person claiming to be aggrieved by an unlawful discriminatory
practice engaged in by a regulated creditor, in lieu  of  the  procedure
set  forth in section two hundred ninety-seven of this article, may file
a verified complaint with the superintendent, as  provided  hereinafter;
provided,  however,  that  the  filing  of  a  complaint with either the
superintendent or the division shall  bar  subsequent  recourse  to  the
other  agency,  as well as to any local commission on human rights, with
respect to the grievance complained of.
  7. In the case of a verified complaint filed with  the  superintendent
the following procedures shall be followed:
  a.  After  receipt  of  the complaint, the superintendent shall make a
determination within thirty days of whether there is probable  cause  to
believe  that  the  person  named  in the complaint has engaged in or is
engaging in an unlawful discriminatory practice. If  the  superintendent
determines  there  is  no  such  probable  cause, the complaint shall be
dismissed. If the superintendent determines that there is such  probable
cause,  he  or she shall attempt to resolve such complaint by conference
and conciliation. If  conciliation  is  achieved,  the  terms  shall  be
recorded  in a written agreement signed by the creditor and complainant,
a copy of which shall be forwarded to the commissioner.
  b. If conciliation is not achieved, the superintendent or his  or  her
designated  representative  shall  conduct a hearing with respect to the
alleged violation of this  section.  All  interested  parties  shall  be
entitled  to  adequate  and  timely  notice of the hearing. Such parties
shall  have  the  right  to  be  represented  by  counsel  or  by  other
representatives  of  their own choosing; to offer evidence and witnesses
in their own behalf and to cross-examine other parties and witnesses; to
have the power of subpoena exercised in their behalf; and to have access
to a written record of such hearing. The superintendent or  his  or  her
representative  shall  not  be  bound  by  the  strict rules of evidence
prevailing in courts of law or equity.  The  testimony  taken  shall  be
under  oath  and  a  record  shall be made of the proceedings. A written
decision shall be made by the superintendent or his  or  her  designated
representative separately setting forth findings of fact and conclusions
of law. A copy of such decision shall be forwarded to the commissioner.

  c.  If  the  superintendent finds that a violation of this section has
occurred, the superintendent shall issue an order which shall do one  or
more of the following:

(1) impose a fine in an amount not to exceed ten thousand dollars for each violation, to be paid to the people of the state of New York;

(2) award compensatory damages to the person aggrieved by such violation;

(3) for a claim of sex discrimination only, award reasonable attorney's fees attributable to such claim to any prevailing party; provided, however, that a prevailing respondent or defendant in order to recover such reasonable attorney's fees must make a motion requesting such fees and show that the action or proceeding brought was frivolous. In no case shall attorney's fees be awarded to the department, nor shall the department be liable to a prevailing party for attorney's fees. In order to find the action or proceeding to be frivolous, the superintendent must find in writing one or more of the following:

(a) the action or proceeding was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or

(b) the action or proceeding was commenced or continued in bad faith without any reasonable basis and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action or proceeding was promptly discontinued when the party or attorney learned or should have learned that the action or proceeding lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith.

(4) require the regulated creditor to cease and desist from such unlawful discriminatory practices;

(5) require the regulated creditor to take such further affirmative action as will effectuate the purposes of this section, including, but not limited to, granting the credit which was the subject of the complaint. d. Any complainant, respondent or other person aggrieved by any order or final determination of the superintendent may obtain judicial review thereof. 8. Where the superintendent makes a determination that a regulated creditor has engaged in or is engaging in discriminatory practices, the superintendent is empowered to issue appropriate orders to such creditor pursuant to the banking law. Such orders may be issued without the necessity of a complaint being filed by an aggrieved person. 9. Whenever any creditor makes application to the superintendent of financial services to take any action requiring consideration by the superintendent of the public interest and the needs and convenience thereof, or requiring a finding that the financial responsibility, experience, charter, and general fitness of the applicant, and of the members thereof if the applicant be a co-partnership or association, and of the officers and directors thereof if the applicant be a corporation, are such as to command the confidence of the community and to warrant belief that the business will be operated honestly, fairly, and efficiently, such creditor shall certify to the superintendent compliance with the provisions of this section. In the event that the records of the department of financial services show that such creditor has been found to be in violation of this section, such creditor shall describe what action has been taken with respect to its credit policies and procedures to remedy such violation or violations. The superintendent shall, in approving the foregoing applications and making the foregoing findings, give appropriate weight to compliance with this section. 10. Any complaint filed with the superintendent pursuant to this section shall be so filed within one year after the occurrence of the alleged unlawful discriminatory practice. 11. The superintendent is hereby empowered to promulgate rules and regulations hereunder to effectuate the purposes of this section. 12. The provisions of this section, as they relate to age, shall not apply to persons under the age of eighteen years.

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