Section 8-101
§ 8-101 Policy.
In the city of New York, with its great cosmopolitan population, there
is no greater danger to the health, morals, safety and welfare of the
city and its inhabitants than the existence of groups prejudiced against
one another and antagonistic to each other because of their actual or
perceived differences, including those based on race, color, creed, age,
national origin, alienage or citizenship status, gender, sexual
orientation, disability, marital status, partnership status, any lawful
source of income, status as a victim of domestic violence or status as a
victim of sex offenses or stalking, whether children are, may be or
would be residing with a person or conviction or arrest record. The
council hereby finds and declares that prejudice, intolerance, bigotry,
and discrimination, bias-related violence or harassment and disorder
occasioned thereby threaten the rights and proper privileges of its
inhabitants and menace the institutions and foundation of a free
democratic state. A city agency is hereby created with power to
eliminate and prevent discrimination from playing any role in actions
relating to employment, public accommodations, and housing and other
real estate, and to take other actions against prejudice, intolerance,
bigotry, discrimination and bias-related violence or harassment as
herein provided; and the commission established hereunder is hereby
given general jurisdiction and power for such purposes.
Section 8-102
§ 8-102 Definitions. When used in this chapter:
1. The term "person" includes one or more natural persons,
proprietorships, partnerships, associations, group associations,
organizations, governmental bodies or agencies, corporations, legal
representatives, trustees, trustees in bankruptcy, or receivers.
2. The term "employment agency" includes any person undertaking to
procure employees or opportunities to work.
3. The term "labor organization" includes any organization which
exists and is constituted for the purpose, in whole or in part, of
collective bargaining or of dealing with employers concerning
grievances, terms and conditions of employment, or of other mutual aid
or protection in connection with employment.
4. The term "unlawful discriminatory practice" includes only those
practices specified in sections 8-107 and 8-107.1 of this chapter.
5. For purposes of subdivisions one, two, three, twenty-two,
subparagraph one of paragraph a of subdivision twenty-one, and paragraph
e of subdivision twenty-one of section 8-107 of this chapter, the term
"employer" does not include any employer with fewer than four persons in
his or her employ. For purposes of this subdivision, natural persons
employed as independent contractors to carry out work in furtherance of
an employer's business enterprise who are not themselves employers shall
be counted as persons in the employ of such employer.
6. The term "commission" unless a different meaning clearly appears
from the text, means the city commission on human rights created by this
chapter.
7. The term "national origin" shall, for the purposes of this chapter,
include "ancestry."
8. The term "educational institution" includes kindergartens, primary
and secondary schools, academies, colleges, universities, professional
schools, extension courses, and all other educational facilities.
9. The term "place or provider of public accommodation" shall include
providers, whether licensed or unlicensed, of goods, services,
facilities, accommodations, advantages or privileges of any kind, and
places, whether licensed or unlicensed, where goods, services,
facilities, accommodations, advantages or privileges of any kind are
extended, offered, sold, or otherwise made available. Such term shall
not include any club which proves that it is in its nature distinctly
private. A club shall not be considered in its nature distinctly private
if it has more than four hundred members, provides regular meal service
and regularly receives payment for dues, fees, use of space, facilities,
services, meals or beverages directly or indirectly from or on behalf of
non-members for the furtherance of trade or business. For the purposes
of this section a corporation incorporated under the benevolent orders
law or described in the benevolent orders law but formed under any other
law of this state, or a religious corporation incorporated under the
education law or the religious corporation law shall be deemed to be in
its nature distinctly private.
No club which sponsors or conducts any amateur athletic contest or
sparring exhibition and advertises or bills such contest or exhibition
as a New York state championship contest or uses the words "New York
state" in its announcements shall be deemed a private exhibition within
the meaning of this section.
10. The term "housing accommodation" includes any building, structure,
or portion thereof which is used or occupied or is intended, arranged or
designed to be used or occupied, as the home, residence or sleeping
place of one or more human beings. Except as otherwise specifically
provided, such term shall include a publicly-assisted housing
accommodation.
11. The term "publicly-assisted housing accommodations" shall include:
(a) Publicly-owned or operated housing accommodations.
(b) Housing accommodations operated by housing companies under the
supervision of the state commissioner of housing and community renewal,
or the department of housing preservation and development.
(c) Housing accommodations constructed after July first, nineteen
hundred fifty, and housing accommodations sold after July first,
nineteen hundred ninety-one:
(1) which are exempt in whole or in part from taxes levied by the
state or any of its political subdivisions,
(2) which are constructed on land sold below cost by the state or any
of its political subdivisions or any agency thereof, pursuant to the
federal housing act of nineteen hundred forty-nine,
(3) which are constructed in whole or in part on property acquired or
assembled by the state or any of its political subdivisions or any
agency thereof through the power of condemnation or otherwise for the
purpose of such construction, or
(4) for the acquisition, construction, repair or maintenance for which
the state or any of its political subdivisions or any agency thereof
supplies funds or other financial assistance.
(d) Housing accommodations, the acquisition, construction,
rehabilitation, repair or maintenance of which is, after July first,
nineteen hundred fifty-five, financed in whole or in part by a loan,
whether or not secured by a mortgage, the repayment of which is
guaranteed or insured by the federal government or any agency thereof,
or the state or any of its political subdivisions or any agency thereof.
12. The term "family," as used in subparagraph four of paragraph a of
subdivision five of section 8-107 of this chapter, means either a person
occupying a dwelling and maintaining a household, with not more than
four boarders, roomers or lodgers, or two or more persons occupying a
dwelling, living together and maintaining a common household, with not
more than four boarders, roomers or lodgers. A "boarder," "roomer" or
"lodger" residing with a family means a person living within the
household who pays a consideration for such residence and does not
occupy such space within the household as an incident of employment
therein.
13. The term "commercial space" means any space in a building,
structure, or portion thereof which is used or occupied or is intended,
arranged or designed to be used or occupied for the manufacture, sale,
resale, processing, reprocessing, displaying, storing, handling,
garaging or distribution of personal property; and any space which is
used or occupied, or is intended, arranged or designed to be used or
occupied as a business or professional unit or office in any building,
structure or portion thereof.
14. The term "real estate broker" means any person who, for another
and for a fee, commission or other valuable consideration, lists for
sale, sells, at auction or otherwise, exchanges, buys or rents, or
offers or attempts to negotiate a sale at auction, or otherwise,
exchange, purchase or rental of an estate or interest in real estate or
collects or offers or attempts to collect rent for the use of real
estate, or negotiates, or offers or attempts to negotiate, a loan
secured or to be secured by a mortgage or other incumbrance upon or
transfer of real estate. In the sale of lots pursuant to the provisions
of article nine-a of the real property law, the term "real estate
broker" shall also include any person employed by or on behalf of the
owner or owners of lots or other parcels of real estate, at a stated
salary, or upon commission, or upon a salary and commission, or
otherwise, to sell such real estate, or any parts thereof, in lots or
other parcels, and who shall sell or exchange, or offer or attempt or
agree to negotiate the sale or exchange of any such lot or parcel of
real estate.
15. The term "real estate salesperson" means a person employed by or
authorized by a licensed real estate broker to list for sale, sell or
offer for sale at auction or otherwise to buy or offer to buy or to
negotiate the purchase or sale or exchange of real estate or to
negotiate a loan on real estate or to lease or rent or offer to lease,
rent or place for rent any real estate, or who collects or offers or
attempts to collect rents for the use of real estate for or on behalf of
such real estate broker.
16. (a) The term "disability" means any physical, medical, mental or
psychological impairment, or a history or record of such impairment.
(b) The term "physical, medical, mental, or psychological impairment"
means:
(1) an impairment of any system of the body; including, but not
limited to: the neurological system; the musculoskeletal system; the
special sense organs and respiratory organs, including, but not limited
to, speech organs; the cardivascular system; the reproductive system;
the digestive and genito-urinary systems; the hemic and lymphatic
systems; the immunological systems; the skin; and the endocrine system;
or
(2) a mental or psychological impairment.
(c) In the case of alcoholism, drug addiction or other substance
abuse, the term "disability" shall only apply to a person who (1) is
recovering or has recovered and (2) currently is free of such abuse, and
shall not include an individual who is currently engaging in the illegal
use of drugs, when the covered entity acts on the basis of such use.
17. The term "covered entity" means a person required to comply with
any provision of section 8-107 of this chapter.
18. The term "reasonable accommodation" means such accommodation that
can be made that shall not cause undue hardship in the conduct of the
covered entity's business. The covered entity shall have the burden of
proving undue hardship. In making a determination of undue hardship with
respect to claims filed under subdivisions one, two, or twenty-two of
section 8-107, or section 8-107.1 of this chapter, the factors which may
be considered include but shall not be limited to:
(a) the nature and cost of the accommodation;
(b) the overall financial resources of the facility or the facilities
involved in the provision of the reasonable accommodation; the number of
persons employed at such facility; the effect on expenses and resources,
or the impact otherwise of such accommodation upon the operation of the
facility;
(c) the overall financial resources of the covered entity; the overall
size of the business of a covered entity 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 covered entity,
including the composition, structure, and functions of the workforce of
such entity; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the covered
entity.
In making a determination of undue hardship with respect to claims for
reasonable accommodation to an employee's or prospective employee's
religious observance filed under subdivision three of section 8-107 of
this chapter, the definition of "undue hardship" set forth in paragraph
b of such subdivision shall apply.
19. The term "occupation" means any lawful vocation, trade, profession
or field of specialization.
20. The term "sexual orientation" means heterosexuality,
homosexuality, or bisexuality.
21. The term "alienage or citizenship status" means:
(a) the citizenship of any person, or
(b) the immigration status of any person who is not a citizen or
national of the United States.
22. The term "hate crime" means a crime that manifests evidence of
prejudice based on race, religion, ethnicity, disability, sexual
orientation, national origin, age, gender, or alienage or citizenship
status.
23. The term "gender" shall include actual or perceived sex and shall
also include a person's gender identity, self-image, appearance,
behavior or expression, whether or not that gender identity, self-image,
appearance, behavior or expression is different from that traditionally
associated with the legal sex assigned to that person at birth.
24. The term "partnership status" means the status of being in a
domestic partnership, as defined by § 3-240(a) of the administrative
code of the city of New York.
25. The term "lawful source of income" shall include income derived
from social security, or any form of federal, state or local public
assistance or housing assistance including section 8 vouchers.
(26) The term "cyberbullying" means willful and repeated harm
inflicted through the use of computers, cell phones, and other
electronic devices that is intended to frighten, harass, cause harm to,
extort, or otherwise target another.
27. The terms "unemployed" or "unemployment" shall mean not having a
job, being available for work, and seeking employment.
Section 8-103
§ 8-103 Commission on human rights. There is hereby created a
commission on human rights. It shall consist of fifteen members, to be
appointed by the mayor, one of whom shall be designated by the mayor as
its chairperson and shall serve as such at the pleasure of the mayor.
The chairperson shall devote his or her entire time to the chairperson's
duties and shall not engage in any other occupation, profession or
employment. Members other than the chairperson shall serve without
compensation. Of the fifteen members first appointed, five shall be
appointed for one year, five for two years and five for three years;
thereafter all appointments to the commission shall be for a term of
three years. In the event of the death or resignation of any member, his
or her successor shall be appointed to serve for the unexpired period of
the term for which such member had been appointed.
Section 8-104
§ 8-104 Functions. The functions of the commission shall be:
(1) To foster mutual understanding and respect among all persons in
the city of New York;
(2) To encourage equality of treatment for, and prevent discrimination
against, any group or its members;
(3) To cooperate with governmental and non-governmental agencies and
organizations having like or kindred functions; and
(4) To make such investigations and studies in the field of human
relations as in the judgment of the commission will aid in effectuating
its general purposes.
Section 8-105
§ 8-105 Powers and duties. The powers and duties of the commission
shall be:
(1) To work together with federal, state, and city agencies in
developing courses of instruction, for presentation to city employees
and in public and private schools, public libraries, museums and other
suitable places, on techniques for achieving harmonious intergroup
relations within the city of New York, on types of bias-related
harassment and repeated hostile behavior including conduct or verbal
threats, taunting, intimidation, abuse, and cyberbullying, and to engage
in other anti-discrimination activities.
(2) To enlist the cooperation of various groups, and organizations, in
mediation efforts, programs and campaigns devoted to eliminating group
prejudice, intolerance, hate crimes, bigotry and discrimination.
(3) To study the problems of prejudice, intolerance, bigotry,
discrimination and disorder occasioned thereby in all or any fields of
human relationship.
(4) (a) To receive, investigate and pass upon complaints and to
initiate its own investigations of:
(i) Group tensions, prejudice, intolerance, bigotry and disorder
occasioned thereby.
(ii) Discrimination against any person or group of persons, provided,
however, that with respect to discrimination alleged to be committed by
city officials or city agencies, such investigation shall be commenced
after consultation with the mayor. Upon its own motion, to make, sign
and file complaints alleging violations of this chapter.
(b) In the event that any investigation undertaken pursuant to
paragraph a of this subdivision discloses information that any person or
group of persons may be engaged in a pattern or practice that results in
the denial to any person or group of persons of the full enjoyment of
any right secured by this chapter, in addition to making, signing and
filing a complaint upon its own motion pursuant to paragraph a of this
subdivision, to refer such information to the corporation counsel for
the purpose of commencing a civil action pursuant to chapter four of
this title.
(5) (a) To issue subpoenas in the manner provided for in the civil
practice law and rules compelling the attendance of witnesses and
requiring the production of any evidence relating to any matter under
investigation or any question before the commission, and to take proof
with respect thereto;
(b) To hold hearings, administer oaths and take the testimony of any
person under oath; and
(c) In accordance with applicable law, to require the production of
any names of persons necessary for the investigation of any institution,
club or other place or provider of accommodation.
(6) In accordance with the provisions of subdivision b of section
8-114 of this chapter, to require any person or persons who are the
subject of an investigation by the commission to preserve such records
as are in the possession of such person or persons and to continue to
make and keep the type of records that have been made and kept by such
person or persons in the ordinary course of business within the previous
year, which records are relevant to the determination whether such
person or persons have committed unlawful discriminatory practices with
respect to activities in the city.
(7) To issue publications and reports of investigations and research
designed to promote good will and minimize or eliminate prejudice,
intolerance, bigotry, discrimination and disorder occasioned thereby.
(8) To appoint such employees and agents as it deems to be necessary
to carry out its functions, powers and duties and to assign to such
persons any of such functions, powers and duties; provided, however,
that the commission shall not delegate its power to adopt rules, and,
provided further, that the commission's power to order that records be
preserved or made and kept pursuant to subdivision b of section 8-114 of
this chapter and the commission's power to determine that a respondent
has engaged in an unlawful discriminatory practice and to issue an order
for such relief as is necessary and proper shall be delegated only to
members of the commission. The expenses for the carrying on of the
commission's activities shall be paid out of the funds in the city
treasury. The commission's appointment and assignment powers as set
forth in this subdivision may be exercised by the chairperson of the
commission.
(9) To recommend to the mayor and to the council, legislation to aid
in carrying out the purpose of this chapter.
(10) To submit an annual report by March 1 to the mayor and the
council which shall be published in the City Record. Such annual report
shall include information for the calendar year that is the subject of
the report regarding: (i) inquiries received by the commission from the
public; provided that such information for calendar years 2009 and 2010
must only be included in the annual report submitted by March 1, 2012,
(ii) complaints filed with the commission, and (iii) education and
outreach efforts made by the commission.
(a) The information regarding inquiries received by the commission
from the public shall include, but not be limited to: (i) the total
number of inquiries; (ii) the number of inquiries made by limited
English proficient persons disaggregated by language; (iii) the subject
matter of inquiries disaggregated by the alleged category of unlawful
discriminatory practice as set forth by sections 8-107 and 8-107.1(2) of
this chapter and the protected class of person, and (iv) the number of
inquiries resolved by pre-complaint intervention.
(b) The information regarding complaints filed with the commission
shall include, but not be limited to, the number of complaints filed
with the commission and shall be disaggregated by: (i) the category of
unlawful discriminatory practice, as set forth by sections 8-107 and
8-107.1(2) of this chapter, alleged; (ii) the basis of the alleged
discriminatory practice based on protected class of the complainant;
(iii) whether the complaint was resolved by mediation and conciliation,
as set forth in section 8-115 of this chapter; a determination of no
probable cause, as set forth in section 8-116 of this chapter; or a
hearing, as set forth by section 8-119 of this chapter; (iv) the number
of days the complaint was outstanding at the time such resolution
occurred; and (v) whether a fine, penalty, or cash award was imposed
and, if so, the dollar amount of such fine, penalty or cash award.
(c) The information regarding the commission's education and outreach
efforts as required by sections 8-105(1) and 8-105(2) of this chapter
shall include, but not be limited to: (i) the types of outreach
initiated; (ii) the number of people with whom the commission made
contact as a result of outreach; (iii) the number of limited English
proficient persons served; and (iv) the languages in which such outreach
was conducted.
(11) To adopt rules to carry out the provisions of this chapter and
the policies and procedures of the commission in conneciton therewith.
Section 8-106
§ 8-106 Relations with city departments and agencies. So far as
practicable and subject to the approval of the mayor, the services of
all other city departments and agencies shall be made available by their
respective heads to the commission for the carrying out of the functions
herein stated. The head of any department or agency shall furnish
information in the possession of such department or agency when the
commission so requests. The corporation counsel, upon request of the
chairperson of the commission, may assign counsel to assist the
commission in the conduct of its investigatory or prosecutorial
functions.
Section 8-107
§ 8-107 Unlawful discriminatory practices. 1. Employment. It shall be
an unlawful discriminatory practice:
(a) For an employer or an employee or agent thereof, because of the
actual or perceived age, race, creed, color, national origin, gender,
disability, marital status, partnership status, sexual orientation or
alienage or citizenship status of any person, to refuse to hire or
employ or to bar or to discharge from employment such person or to
discriminate against such person in compensation or in terms, conditions
or privileges of employment.
(b) For an employment agency or an employee or agent thereof to
discriminate against any person because of such person's actual or
perceived age, race, creed, color, national origin, gender, disability,
marital status, partnership status, sexual orientation or alienage or
citizenship status in receiving, classifying, disposing or otherwise
acting upon applications for its services or in referring an applicant
or applicants for its services to an employer or employers.
(c) For a labor organization or an employee or agent thereof, because
of the actual or perceived age, race, creed, color, national origin,
gender, disability, marital status, partnership status, sexual
orientation or alienage or citizenship status of any person, to exclude
or to expel from its membership such person or to discriminate in any
way against any of its members or against any employer or any person
employed by an employer.
(d) For any employer, labor organization or employment agency or an
employee or agent thereof to declare, print or circulate or cause to be
declared, 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, gender, disability,
marital status, partnership status, sexual orientation or alienage or
citizenship status, or any intent to make any such limitation,
specification or discrimination.
(e) The provisions of this subdivision and subdivision two of this
section: (i) as they apply to employee benefit plans, shall not be
construed to preclude an employer from observing the provisions of any
plan covered by the federal employment retirement income security act of
nineteen hundred seventy-four that is in compliance with applicable
federal discrimination laws where the application of the provisions of
such subdivisions to such plan would be preempted by such act; (ii)
shall not preclude the varying of insurance coverages according to an
employee's age; (iii) shall not be construed to affect any retirement
policy or system that is permitted pursuant to paragraph (e) and (f) of
subdivision three-a of section two hundred ninety-six of the executive
law; (iv) shall not be construed to affect the retirement policy or
system of an employer where such policy or system is not a subterfuge to
evade the purposes of this chapter.
(f) The provisions of this subdivision shall not govern the employment
by an employer of his or her parents, spouse, domestic partner, or
children; provided, however, that such family members shall be counted
as persons employed by an employer for the purposes of subdivision five
of section 8-102 of this chapter.
2. Apprentice training programs. It shall be an unlawful
discriminatory practice for an employer, labor organization, employment
agency or any joint labor-management committee controlling apprentice
training programs or an employee or agent thereof:
(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 his or her
actual or perceived race, creed, color, national origin, gender, age,
disability, marital status, partnership status, sexual orientation or
alienage or citizenship status the right to be admitted to or
participate in a guidance program, an apprentice training program,
on-the-job training program, or other occupational training or
retraining program.
(c) To discriminate against any person in his or her pursuit of such
program or to discriminate against such a person in the terms,
conditions or privileges of such program because of actual or perceived
race, creed, color, national origin, gender, age, disability, marital
status, partnership status, sexual orientation or alienage or
citizenship status.
(d) To declare, print or circulate or cause to be declared, printed or
circulated any statement, advertisement or publication, or to use any
form of application for such program 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, gender, age, disability, marital status,
partnership status, sexual orientation or alienage or citizenship
status, or any intent to make any such limitation, specification or
discrimination.
3. Employment; religious observance. (a) It shall be an unlawful
discriminatory practice for an employer or an employee or agent thereof
to impose upon a person as a condition of obtaining or retaining
employment any terms or conditions, compliance with which would require
such person to violate, or forego a practice of, his or her creed or
religion, including but not limited to the observance of any particular
day or days or any portion thereof as a sabbath or holy day or the
observance of any religious custom or usage, and the employer shall make
reasonable accommodation to the religious needs of such person. Without
in any way limiting the foregoing, 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 such person's religion, he or she
observes as a 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 judgment of the employer,
be made up by an equivalent amount of time at some other mutually
convenient time.
(b) "Reasonable accommodation", as used in this subdivision, shall
mean such accommodation to an employee's or prospective employee's
religious observance or practice as shall not cause undue hardship in
the conduct of the employer's business. The employer shall have the
burden of proof to show such hardship. "Undue hardship" as used in this
subdivision 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, for purposes of this subdivision, if it will result
in the inability of an employee who is seeking a religious accommodation
to perform the essential functions of the position in which he or she is
employed.
4. Public accommodations. a. It shall be an unlawful discriminatory
practice for any person, being the owner, lessee, proprietor, manager,
superintendent, agent or employee of any place or provider of public
accommodation, because of the actual or perceived race, creed, color,
national origin, age, gender, disability, marital status, partnership
status, sexual orientation or alienage or citizenship 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, or, directly or indirectly, to make any declaration, 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
or provider shall be refused, withheld from or denied to any person on
account of race, creed, color, national origin, age, gender, disability,
marital status, partnership status, sexual orientation or alienage or
citizenship status or that the patronage or custom of any person
belonging to, purporting to be, or perceived to be, of any particular
race, creed, color, national origin, age, gender, disability, marital
status, partnership status, sexual orientation or alienage or
citizenship status is unwelcome, objectionable or not acceptable,
desired or solicited.
b. Notwithstanding the foregoing, the provisions of this subdivision
shall not apply, with respect to age or gender, to places or providers
of public accommodation where the commission grants an exemption based
on bona fide considerations of public policy.
c. The provisions of this subdivision relating to discrimination on
the basis of gender shall not prohibit any educational institution
subject to this subdivision from making gender distinctions which would
be permitted (i) for educational institutions which are subject to
section thirty-two hundred one-a of the education law or any rules or
regulations promulgated by the state commissioner of education relating
to gender or (ii) under sections 86.32, 86.33 and 86.34 of title
forty-five of the code of federal regulations for educational
institutions covered thereunder.
d. Nothing in this subdivision shall be construed to preclude an
educational institution -- other than a publicly-operated educational
institution -- which establishes or maintains a policy of educating
persons of one gender exclusively from limiting admissions to students
of that gender.
e. The provisions of this subdivision relating to disparate impact
shall not apply to the use of standardized tests as defined by section
three hundred forty of the education law by an educational institution
subject to this subdivision provided that such test is used in the
manner and for the purpose prescribed by the test agency which designed
the test.
f. The provisions of this subdivision as they relate to unlawful
discriminatory practices by educational institutions shall not apply to
matters that are strictly educational or pedagogic in nature.
5. Housing accommodations, land, commercial space and lending
practices. (a) Housing accommodations. It shall be an unlawful
discriminatory practice for the owner, lessor, lessee, sublessee,
assignee, or managing agent of, or other person having the right to
sell, rent or lease or approve the sale, rental or lease of a housing
accommodation, constructed or to be constructed, or an interest therein,
or any agent or employee thereof:
(1) To refuse to sell, rent, lease, approve the sale, rental or lease
or otherwise deny to or withhold from any person or group of persons
such a housing accommodation or an interest therein because of the
actual or perceived race, creed, color, national origin, gender, age,
disability, sexual orientation, marital status, partnership status, or
alienage or citizenship status of such person or persons, or because of
any lawful source of income of such person or persons, or because
children are, may be or would be residing with such person or persons.
(2) To discriminate against any person because of such person's actual
or perceived race, creed, color, national origin, gender, age,
disability, sexual orientation, marital status, partnership status, or
alienage or citizenship status, or because of any lawful source of
income of such person, or because children are, may be or would be
residing with such person, in the terms, conditions or privileges of the
sale, rental or lease of any such housing accommodation or an interest
therein or in the furnishing of facilities or services in connection
therewith.
(3) To declare, print or circulate or cause to be declared, printed or
circulated any statement, advertisement or publication, or to use any
form of application for the purchase, rental or lease of such a housing
accommodation or an interest therein or to make any record or inquiry in
conjunction with the prospective purchase, rental or lease of such a
housing accommodation or an interest therein which expresses, directly
or indirectly, any limitation, specification or discrimination as to
race, creed, color, national origin, gender, age, disability, sexual
orientation, marital status, partnership status, or alienage or
citizenship status, or any lawful source of income, or whether children
are, may be, or would be residing with a person, or any intent to make
such limitation, specification or discrimination.
(4) The provisions of this paragraph (a) shall not apply:
(1) to the rental of a housing accommodation, other than a
publicly-assisted housing accommodation, in a building which contains
housing accommodations for not more than two families living
independently of each other, if the owner or members of the owner's
family reside in one of such housing accommodations, and if the
available housing accommodation has not been publicly advertised,
listed, or otherwise offered to the general public; or
(2) to the rental of a room or rooms in a housing accommodation, other
than a publicly-assisted housing accommodation, if such rental is by the
occupant of the housing accommodation or by the owner of the housing
accommodation and the owner or members of the owner's family reside in
such housing accommodation.
(b) Land and commercial space. It shall be an unlawful discriminatory
practice for the owner, lessor, lessee, sublessee, or managing agent of,
or other person having the right of ownership or possession of or the
right to sell, rent, or lease, or approve the sale, rental or lease of
land or commercial space or an interest therein, or any agency or
employee thereof:
(1) To refuse to sell, rent, lease, approve the sale, rental or lease
or otherwise deny or to withhold from any person or group of persons
land or commercial space or an interest therein because of the actual or
perceived race, creed, color, national origin, gender, age, disability,
sexual orientation, marital status, partnership status, or alienage or
citizenship status of such person or persons, or because children are,
may be or would be residing with such person or persons.
(2) To discriminate against any person because of actual or perceived
race, creed, color, national origin, gender, age, disability, sexual
orientation, marital status, partnership status, or alienage or
citizenship status, or because children are, may be or would be residing
with such person, in the terms, conditions or privileges of the sale,
rental or lease of any such land or commercial space or an interest
therein or in the furnishing of facilities or services in connection
therewith.
(3) To declare, print or circulate or cause to be declared, 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 an interest therein or to make any record or inquiry
in connection with the prospective purchase, rental or lease of such
land or commercial space or an interest therein which expresses,
directly or indirectly, any limitation, specification or discrimination
as to race, creed, color, national origin, gender, age, disability,
sexual orientation, marital status, partnership status, or alienage or
citizenship status, or whether children are, may be or would be residing
with such person, or any intent to make any such limitation,
specification or discrimination.
(c) Real estate brokers. 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 or an interest therein 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 or an interest therein
to any person or group of persons because of the actual or perceived
race, creed, color, national origin, gender, age, disability, sexual
orientation, marital status, partnership status, or alienage or
citizenship status of such person or persons, or because of any lawful
source of income of such person or persons, or because children are, may
be or would be residing with such person or persons, or to represent
that any housing accommodation, land or commercial space or an interest
therein 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 an interest therein or any
facilities of any housing accommodation, land or commercial space or an
interest therein from any person or group of persons because of the
actual or perceived race, creed, color, national origin, gender, age,
disability, sexual orientation, marital status, partnership status, or
alienage or citizenship status of such person or persons, or because of
any lawful source of income of such person or persons, or because
children are, may be or would be residing with such person or persons.
(2) To declare, print or circulate or cause to be declared, 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 an interest therein or to
make any record or inquiry in connection with the prospective purchase,
rental or lease of any housing accommodation, land or commercial space
or an interest therein which expresses, directly or indirectly, any
limitation, specification or discrimination as to race, creed, color,
national origin, gender, age, disability, sexual orientation, marital
status, partnership status, or alienage or citizenship status, or any
lawful source of income, or to whether children are, may be or would be
residing with a person, or any intent to make such limitation,
specification or discrimination.
(3) To induce or attempt to induce any person to sell or rent any
housing accommodation, land or commercial space or an interest therein
by representations, explicit or implicit, regarding the entry or
prospective entry into the neighborhood or area of a person or persons
of any race, creed, color, gender, age, disability, sexual orientation,
marital status, partnership status, national origin, alienage or
citizenship status, or a person or persons with any lawful source of
income, or a person or persons with whom children are, may be or would
be residing.
(d) Lending practices. It shall be an unlawful discriminatory practice
for any person, bank, trust company, private banker, savings bank,
industrial bank, savings and loan association, credit union, investment
company, mortgage company, insurance company, or other financial
institution or lender, doing business in the city and if incorporated
regardless of whether incorporated under the laws of the state of New
York, the United States or any other jurisdiction, or any officer, agent
or employee thereof to whom application is made for a loan, mortgage or
other form of financial assistance for the purchase, acquisition,
construction, rehabilitation, repair or maintenance of any housing
accommodation, land or commercial space or an interest therein:
(1) To discriminate against such applicant or applicants because of
the actual or perceived race, creed, color, national origin, gender,
disability, sexual orientation, age, marital status, partnership status,
or alienage or citizenship status of such applicant or applicants or of
any member, stockholder, director, officer or employee of such applicant
or applicants, or of the occupants or tenants or prospective occupants
or tenants of such housing accommodation, land or commercial space, or
because children are, may be or would be residing with such applicant or
other person, in the granting, withholding, extending or renewing, or in
the fixing of rates, terms or conditions of any such financial
assistance or in the appraisal of any housing accommodation, land or
commercial space or an interest therein.
(2) To use any form of application for a loan, mortgage, or other form
of financial assistance, or to make any record or inquiry in connection
with applications for such financial assistance, or in connection with
the appraisal of any housing accommodation, land or commercial space or
an interest therein, which expresses, directly or indirectly, any
limitation, specification or discrimination as to race, creed, color,
national origin, gender, disability, sexual orientation, age, marital
status, partnership status, or alienage or citizenship status, or
whether children are, may be, or would be residing with a person.
(e) Real estate services. It shall be an unlawful discriminatory
practice to deny a person access to, or membership in or participation
in, a multiple listing service, real estate brokers' organization, or
other service because of the actual or perceived race, creed, color,
national origin, gender, disability, sexual orientation, age, marital
status, partnership status, or alienage or citizenship status of such
person or because children are, may be or would be residing with such
person.
(f) Real estate related transactions. It shall be an unlawful
discriminatory practice for any person whose business includes the
appraisal of housing accommodations, land or commercial space or
interest therein or an employee or agent thereof to discriminate in
making available or in the terms or conditions of such appraisal on the
basis of the actual or perceived race, creed, color, national origin,
gender, disability, sexual orientation, age, marital status, partnership
status, or alienage or citizenship status of any person or because
children are, may be or would be residing with such person.
(g) Applicability; persons under eighteen years of age. The provisions
of this subdivision, as they relate to unlawful discriminatory practices
in housing accommodations, land and commercial space or an interest
therein and lending practices on the basis of age, shall not apply to
unemancipated persons under the age of eighteen years.
(h) Applicability; discrimination against persons with children. The
provisions of this subdivision with respect to discrimination against
persons with whom children are, may be or would be residing shall not
apply to housing for older persons as defined in paragraphs two and
three of subdivision (b) of section thirty-six hundred seven of title
forty-two of the United States code and any regulations promulgated
thereunder.
(i) Applicability; senior citizen housing. The provisions of this
subdivision with respect to discrimination on the basis of age shall not
apply to the restriction of the sale, rental or lease of any housing
accommodation, land or commercial space or an interest therein
exclusively to persons fifty-five years of age or older. This paragraph
shall not be construed to permit discrimination against such persons
fifty-five years of age or older on the basis of whether children are,
may be or would be residing in such housing accommodation or land or an
interest therein unless such discrimination is otherwise permitted
pursuant to paragraph (h) of this subdivision.
(j) Applicability; dormitory residence operated by educational
institution. The provisions of this subdivision relating to
discrimination on the basis of gender in housing accommodations shall
not prohibit any educational institution from making gender distinctions
in dormitory residences which would be permitted under sections 86.32
and 86.33 of title forty-five of the code of federal regulations for
educational institutions covered thereunder.
(k) Applicability; dormitory-type housing accommodations. The
provisions of this subdivision which prohibit distinctions on the basis
of gender and whether children are, may be or would be residing with a
person shall not apply to dormitory-type housing accommodations
including, but not limited to, shelters for the homeless where such
distinctions are intended to recognize generally accepted values of
personal modesty and privacy or to protect the health, safety or welfare
of families with children.
(l) Exemption for special needs of particular age group in
publicly-assisted housing accommodations. Nothing in this subdivision
shall restrict the consideration of age in the rental of
publicly-assisted housing accommodations if the state division of human
rights grants an exemption pursuant to section two hundred ninety-six of
the executive law 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; provided however,
that this paragraph shall not be construed to permit discrimination on
the basis of whether children are, may be or would be residing in such
housing accommodations unless such discrimination is otherwise permitted
pursuant to paragraph (h) of this section.
(m) Applicability; use of criteria or qualifications in
publicly-assisted housing accommodations. The provisions of this
subdivision shall not be construed to prohibit the use of criteria or
qualifications of eligibility for the sale, rental, leasing or occupancy
of publicly-assisted housing accommodations where such criteria or
qualifications are required to comply with federal or state law, or are
necessary to obtain the benefits of a federal or state program, or to
prohibit the use of statements, advertisements, publications,
applications or inquiries to the extent that they state such criteria or
qualifications or request information necessary to determine or verify
the eligibility of an applicant, tenant, purchaser, lessee or occupant.
(n) Discrimination on the basis of occupation prohibited in housing
accommodations. Where a housing accommodation or an interest therein is
sought or occupied exclusively for residential purposes, the provisions
of this subdivision shall be construed to prohibit discrimination in the
sale, rental, or leasing of such housing accommodation or interest
therein and in the terms, conditions and privileges of the sale, rental
or leasing of such housing accommodation or interest therein and in the
furnishing of facilities or services in connection therewith, on account
of a person's occupation.
(o) Applicability; lawful source of income. The provisions of this
subdivision, as they relate to unlawful discriminatory practices on the
basis of lawful source of income, shall not apply to housing
accommodations that contain a total of five or fewer housing units,
provided, however:
(i) the provisions of this subdivision shall apply to tenants subject
to rent control laws who reside in housing accommodations that contain a
total of five or fewer units at the time of the enactment of this local
law; and provided, however
(ii) the provisions of this subdivision shall apply to all housing
accommodations, regardless of the number of units contained in each, of
any person who has the right to sell, rent or lease or approve the sale,
rental or lease of at least one housing accommodation within New York
City that contains six or more housing units, constructed or to be
constructed, or an interest therein.
6. Aiding and abetting. 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 chapter, or to attempt to do so.
7. Retaliation. It shall be an unlawful discriminatory practice for
any person engaged in any activity to which this chapter applies to
retaliate or discriminate in any manner against any person because such
person has (i) opposed any practice forbidden under this chapter, (ii)
filed a complaint, testified or assisted in any proceeding under this
chapter, (iii) commenced a civil action alleging the commission of an
act which would be an unlawful discriminatory practice under this
chapter, (iv) assisted the commission or the corporation counsel in an
investigation commenced pursuant to this title, or (v) provided any
information to the commission pursuant to the terms of a conciliation
agreement made pursuant to section 8-115 of this chapter. The
retaliation or discrimination complained of under this subdivision need
not result in an ultimate action with respect to employment, housing or
a public accommodation or in a materially adverse change in the terms
and conditions of employment, housing, or a public accommodation,
provided, however, that the retaliatory or discriminatory act or acts
complained of must be reasonably likely to deter a person from engaging
in protected activity.
8. Violation of conciliation agreement. It shall be an unlawful
discriminatory practice for any party to a conciliation agreement made
pursuant to section 8-115 of this chapter to violate the terms of such
agreement.
9. Licenses and permits. It shall be an unlawful discriminatory
practice:
(a) Except as otherwise provided in paragraph (c), for an agency
authorized to issue a license or permit or an employee thereof to
discriminate against an applicant for a license or permit because of the
actual or perceived race, creed, color, national origin, age, gender,
marital status, partnership status, disability, sexual orientation or
alienage or citizenship status of such applicant.
(b) Except as otherwise provided in paragraph (c), for an agency
authorized to issue a license or permit or an employee thereof to
declare, print or circulate or cause to be declared, printed or
circulated any statement, advertisement or publication, or to use any
form of application for a license or permit or to make any inquiry in
connection with any such application, which expresses, directly or
indirectly, any limitation, specification or discrimination as to race,
creed, color, national origin, age, gender, marital status, partnership
status, disability, sexual orientation or alienage or citizenship
status, or any intent to make any such limitation, specification or
discrimination.
(c) Nothing contained in this subdivision shall be construed to bar an
agency authorized to issue a license or permit from using age or
disability as a criterion for determining eligibility for a license or
permit when specifically required to do so by any other provision of
law.
10. Criminal conviction. (a) It shall be unlawful discriminatory
practice for any person to deny any license or permit or employment to
any person 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 on 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.
(b) Pursuant to section seven hundred fifty-five of the correction
law, the provisions of this subdivision shall be enforceable against
public agencies by a proceeding brought pursuant to article
seventy-eight of the civil practice law and rules, and the provisions of
this subdivision shall be enforceable against private employers by the
commission through the administrative procedure provided for in this
chapter or as provided in chapter five of this title. For purposes of
this paragraph only, the terms "public agency" and "private employer"
shall have the meaning given such terms in section seven hundred fifty
of the correction law.
11. Arrest record. It shall be an unlawful discriminatory practice,
unless specifically required or permitted by any other law, for any
person to make any inquiry about, whether in any form of application or
otherwise, or to act upon adversely to the person involved, any arrest
or criminal accusation of such person not then pending against that
person which was followed by a termination of that criminal action or
proceeding in favor of such person, as defined in subdivision two of
section 160.50 of the criminal procedure law, in connection with the
licensing, employment or providing of credit to such person; provided,
however, that the prohibition of such inquiries or adverse action shall
not apply to licensing activities 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.
12. Religious principles. 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
making such selection as is calculated by such organization to promote
the religious principles for which it is established or maintained.
13. Employer liability for discriminatory conduct by employee, agent
or independent contractor. a. An employer shall be liable for an
unlawful discriminatory practice based upon the conduct of an employee
or agent which is in violation of any provision of this section other
than subdivisions one and two of this section.
b. An employer shall be liable for an unlawful discriminatory practice
based upon the conduct of an employee or agent which is in violation of
subdivision one or two of this section only where:
(1) the employee or agent exercised managerial or supervisory
responsibility; or
(2) the employer knew of the employee's or agent's discriminatory
conduct, and acquiesced in such conduct or failed to take immediate and
appropriate corrective action; an employer shall be deemed to have
knowledge of an employee's or agent's discriminatory conduct where that
conduct was known by another employee or agent who exercised managerial
or supervisory responsibility; or
(3) the employer should have known of the employee's or agent's
discriminatory conduct and failed to exercise reasonable diligence to
prevent such discriminatory conduct.
c. An employer shall be liable for an unlawful discriminatory practice
committed by a person employed as an independent contractor, other than
an agent of such employer, to carry out work in furtherance of the
employer's business enterprise only where such discriminatory conduct
was committed in the course of such employment and the employer had
actual knowledge of and acquiesced in such conduct.
d. Where liability of an employer has been established pursuant to
this section and is based solely on the conduct of an employee, agent,
or independent contractor, the employer shall be permitted to plead and
prove that prior to the discriminatory conduct for which it was found
liable it had:
(1) Established and complied with policies, programs and procedures
for the prevention and detection of unlawful discriminatory practices by
employees, agents and persons employed as independent contractors,
including but not limited to:
(i) A meaningful and responsive procedure for investigating complaints
of discriminatory practices by employees, agents and persons employed as
independent contractors and for taking appropriate action against those
persons who are found to have engaged in such practices;
(ii) A firm policy against such practices which is effectively
communicated to employees, agents and persons employed as independent
contractors;
(iii) A program to educate employees and agents about unlawful
discriminatory practices under local, state and federal law; and
(iv) Procedures for the supervision of employees and agents and for
the oversight of persons employed as independent contractors
specifically directed at the prevention and detection of such practices;
and
(2) A record of no, or relatively few, prior incidents of
discriminatory conduct by such employee, agent or person employed as an
independent contractor or other employees, agents or persons employed as
independent contractors.
e. The demonstration of any or all of the factors listed above in
addition to any other relevant factors shall be considered in mitigation
of the amount of civil penalties to be imposed by the commission
pursuant to this chapter or in mitigation of civil penalties or punitive
damages which may be imposed pursuant to chapter four or five of this
title and shall be among the factors considered in determining an
employer's liability under subparagraph three of paragraph b of this
subdivision.
f. The commission may establish by rule policies, programs and
procedures which may be implemented by employers for the prevention and
detection of unlawful discriminatory practices by employees, agents and
persons employed as independent contractors. Notwithstanding any other
provision of law to the contrary, an employer found to be liable for an
unlawful discriminatory practice based solely on the conduct of an
employee, agent or person employed as an independent contractor who
pleads and proves that such policies, programs and procedures had been
implemented and complied with at the time of the unlawful conduct shall
not be liable for any civil penalties which may be imposed pursuant to
this chapter or any civil penalties or punitive damages which may be
imposed pursuant to chapter four or five of this title for such unlawful
discriminatory practices.
14. Applicability; alienage or citizenship status. Notwithstanding any
other provision of this section, it shall not be an unlawful
discriminatory practice for any person to discriminate on the ground of
alienage or citizenship status, or to make any inquiry as to a person's
alienage or citizenship status, or to give preference to a person who is
a citizen or national of the United States over an equally qualified
person who is an alien, when such discrimination is required or when
such preference is expressly permitted by any law or regulation of the
United States, the state of New York or the city of New York, and when
such law or regulation does not provide that state or local law may be
more protective of aliens; provided, however, that this provision shall
not prohibit inquiries or determinations based on alienage or
citizenship status when such actions are necessary to obtain the
benefits of a federal program. An applicant for a license or permit
issued by the city of New York may be required to be authorized to work
in the United States whenever by law or regulation there is a limit on
the number of such licenses or permits which may be issued.
15. Applicability; persons with disabilities.
(a) Requirement to make reasonable accommodation to the needs of
persons with disabilities. Except as provided in paragraph (b), any
person prohibited by the provisions of this section from discriminating
on the basis of disability shall make reasonable accommodation to enable
a person with a disability to satisfy the essential requisites of a job
or enjoy the right or rights in question provided that the disability is
known or should have been known by the covered entity.
(b) Affirmative defense in disability cases. In any case where the
need for reasonable accommodation is placed in issue, it shall be an
affirmative defense that the person aggrieved by the alleged
discriminatory practice could not, with reasonable accommodation,
satisfy the essential requisites of the job or enjoy the right or rights
in question.
(c) Use of drugs or alcohol. Nothing contained in this chapter shall
be construed to prohibit a covered entity from (i) prohibiting the
illegal use of drugs or the use of alcohol at the workplace or on duty
impairment from the illegal use of drugs or the use of alcohol, or (ii)
conducting drug testing which is otherwise lawful.
16. Applicability; sexual orientation.
Nothing in this chapter shall be construed to:
a. Restrict an employer's right to insist that an employee meet bona
fide job-related qualifications of employment;
b. Authorize or require employers to establish affirmative action
quotas based on sexual orientation or to make inquiries regarding the
sexual orientation of current or prospective employees;
c. Limit or override the present exemptions in the human rights law,
including those relating to employment concerns employing fewer than
four persons, as provided in subdivision five of section 8-102;
owner-occupied dwellings, as provided in paragraph (a) of subdivision
five of section 8-107; or 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, as provided in subdivision
twelve of section 8-107 of this chapter;
d. Make lawful any act that violates the penal law of the state of New
York; or
e. Endorse any particular behavior or way of life.
17. Disparate impact.
a. An unlawful discriminatory practice based upon disparate impact is
established when:
(1) the commission or a person who may bring an action under chapter
four or five of this title demonstrates that a policy or practice of a
covered entity or a group of policies or practices of a covered entity
results in a disparate impact to the detriment of any group protected by
the provisions of this chapter; and
(2) the covered entity fails to plead and prove as an affirmative
defense that each such policy or practice bears a significant
relationship to a significant business objective of the covered entity
or does not contribute to the disparate impact; provided, however, that
if the commission or such person who may bring an action demonstrates
that a group of policies or practices results in a disparate impact, the
commission or such person shall not be required to demonstrate which
specific policies or practices within the group results in such
disparate impact; provided further, that a policy or practice or group
of policies or practices demonstrated to result in a disparate impact
shall be unlawful where the commission or such person who may bring an
action produces substantial evidence that an alternative policy or
practice with less disparate impact is available to the covered entity
and the covered entity fails to prove that such alternative policy or
practice would not serve the covered entity as well. "Significant
business objective" shall include, but not be limited to, successful
performance of the job.
b. The mere existence of a statistical imbalance between a covered
entity's challenged demographic composition and the general population
is not alone sufficient to establish a prima facie case of disparate
impact violation unless the general population is shown to be the
relevant pool for comparison, the imbalance is shown to be statistically
significant and there is an identifiable policy or practice or group of
policies or practices that allegedly causes the imbalance.
c. Nothing contained in this subdivision shall be construed to mandate
or endorse the use of quotas; provided, however, that nothing contained
in this subdivision shall be construed to limit the scope of the
commission's authority pursuant to sections 8-115 and 8-120 of this
chapter or to affect court-ordered remedies or settlements that are
otherwise in accordance with law.
18. Unlawful boycott or blacklist. It shall be an unlawful
discriminatory practice (i) for any person to discriminate against,
boycott or blacklist or to refuse to buy from, sell to or trade with,
any person, because of such person's actual or perceived race, creed,
color, national origin, gender, disability, age, marital status,
partnership status, sexual orientation or alienage or citizenship status
or of such person's partners, members, stockholders, directors,
officers, managers, superintendents, agents, employees, business
associates, suppliers or customers, or (ii) for any person willfully 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;
(b) Boycotts to protest unlawful discriminatory practices; or
(c) Any form of expression that is protected by the First Amendment.
19. Interference with protected rights. It shall be an unlawful
discriminatory practice for any person to coerce, intimidate, threaten
or interfere with, or attempt to coerce, intimidate, threaten or
interfere with, any person in the exercise or enjoyment of, or on
account of his or her having aided or encouraged any other person in the
exercise or enjoyment of, any right granted or protected pursuant to
this section.
20. Relationship or association. The provisions of this section set
forth as unlawful discriminatory practices shall be construed to
prohibit such discrimination against a person because of the actual or
perceived race, creed, color, national origin, disability, age, sexual
orientation or alienage or citizenship status of a person with whom such
person has a known relationship or association.
21. Employment; an individual's unemployment. a. Prohibition of
discrimination based on an individual's unemployment.
(1) Except as provided in paragraphs b and c of this subdivision, an
employer, employment agency, or agent thereof shall not base an
employment decision with regard to hiring, compensation or the terms,
conditions or privileges of employment on an applicant's unemployment.
(2) Unless otherwise permitted by city, state or federal law, no
employer, employment agency, or agent thereof shall publish, in print or
in any other medium, an advertisement for any job vacancy in this city
that contains one or more of the following:
(a) Any provision stating or indicating that being currently employed
is a requirement or qualification for the job;
(b) Any provision stating or indicating that an employer, employment
agency, or agent thereof will not consider individuals for employment
based on their unemployment.
b. Effect of subdivision. (1) Paragraph a of this subdivision shall
not be construed to prohibit an employer, employment agency, or agent
thereof from (a) considering an applicant's unemployment, where there is
a substantially job-related reason for doing so; or (b) inquiring into
the circumstances surrounding an applicant's separation from prior
employment.
(2) Nothing set forth in this subdivision shall be construed as
prohibiting an employer, employment agency, or agent thereof, when
making employment decisions with regard to hiring, compensation, or the
terms, conditions or privileges of employment, from considering any
substantially job-related qualifications, including but not limited to:
a current and valid professional or occupational license; a certificate,
registration, permit, or other credential; a minimum level of education
or training; or a minimum level of professional, occupational, or field
experience.
(3) Nothing set forth in this subdivision shall be construed as
prohibiting an employer, employment agency, or agent thereof from
publishing, in print or in any other medium, an advertisement for any
job vacancy in this city that contains any provision setting forth any
substantially job-related qualifications, including but not limited to:
a current and valid professional or occupational license; a certificate,
registration, permit, or other credential; a minimum level of education
or training; or a minimum level of professional, occupational, or field
experience.
(4) (a) Nothing set forth in this subdivision shall be construed as
prohibiting an employer, employment agency, or agent thereof, when
making employment decisions with regard to hiring, compensation, or the
terms, conditions or privileges of employment, from determining that
only applicants who are currently employed by the employer will be
considered for employment or given priority for employment or with
respect to compensation or terms, conditions or privileges of
employment. In addition, nothing set forth in this subdivision shall
prevent an employer from setting compensation or terms or conditions of
employment for a person based on that person's actual amount of
experience.
(b) For the purposes of this subparagraph, all persons whose salary or
wages are paid from the city treasury, and all persons who are employed
by public agencies or entities headed by officers or boards including
one or more individuals appointed or recommended by officials of the
city of New York, shall be deemed to have the same employer.
c. Applicability of subdivision. (1) This subdivision shall not apply
to: (a) actions taken by the New York city department of citywide
administrative services in furtherance of its responsibility for city
personnel matters pursuant to chapter thirty-five of the charter or as a
municipal civil service commission administering the civil service law
and other applicable laws, or by the mayor in furtherance of the mayor's
duties relating to city personnel matters pursuant to chapter
thirty-five of the charter, including, but not limited to, the
administration of competitive examinations, the establishment and
administration of eligible lists, and the establishment and
implementation of minimum qualifications for appointment to positions;
(b) actions taken by officers or employees of other public agencies or
entities charged with performing functions comparable to those performed
by the department of citywide administrative services or the mayor as
described in paragraph one of this subdivision;
(c) agency appointments to competitive positions from eligible lists
pursuant to subsection one of section sixty-one of the state civil
service law; or
(d) the exercise of any right of an employer or employee pursuant to a
collective bargaining agreement.
(2) This subdivision shall apply to individual hiring decisions made
by an agency or entity with respect to positions for which appointments
are not required to be made from an eligible list resulting from a
competitive examination.
d. Public education campaign. The commission shall develop courses of
instruction and conduct ongoing public education efforts as necessary to
inform employers, employment agencies, and job applicants about their
rights and responsibilities under this subdivision.
e. Disparate impact. An unlawful discriminatory practice based on
disparate impact under this subdivision is established when: (1) the
commission or a person who may bring an action under chapter four or
five of this title demonstrates that a policy or practice of an
employer, employment agency, or agent thereof, or a group of policies or
practices of such an entity results in a disparate impact to the
detriment of any group protected by the provisions of this subdivision;
and (2) such entity fails to plead and prove as an affirmative defense
that each such policy or practice has as its basis a substantially
job-related qualification or does not contribute to the disparate
impact; provided, however, that if the commission or such person who may
bring an action demonstrates that a group of policies or practices
results in a disparate impact, the commission or such person shall not
be required to demonstrate which specific policies or practices within
the group results in such disparate impact; provided further, that a
policy or practice or group of policies or practices demonstrated to
result in a disparate impact shall be unlawful where the commission or
such person who may bring an action produces substantial evidence that
an alternative policy or practice with less disparate impact is
available to such entity and such entity fails to prove that such
alternative policy or practice would not serve such entity as well. A
"substantially job-related qualification" shall include, but not be
limited to, a current and valid professional or occupational license; a
certificate, registration, permit, or other credential; a minimum level
of education or training; or a minimum level of professional,
occupational, or field experience.
(22) Employment; Pregnancy, childbirth, or a related medical
condition. (a) It shall be an unlawful discriminatory practice for an
employer to refuse to provide a reasonable accommodation, as defined in
subdivision eighteen of section 8-102 of this chapter, to the needs of
an employee for her pregnancy, childbirth, or related medical condition
that will allow the employee to perform the essential requisites of the
job, provided that such employee's pregnancy, childbirth, or related
medical condition is known or should have been known by the employer. In
any case pursuant to this subdivision where the need for reasonable
accommodation is placed in issue, it shall be an affirmative defense
that the person aggrieved by the alleged discriminatory practice could
not, with reasonable accommodation, satisfy the essential requisites of
the job.
(b) Notice of rights. (i) An employer shall provide written notice in
a form and manner to be determined by the commission of the right to be
free from discrimination in relation to pregnancy, childbirth, and
related medical conditions pursuant to this subdivision to: (1) new
employees at the commencement of employment; and (2) existing employees
within one hundred twenty days after the effective date of the local law
that added this subdivision. Such notice may also be conspicuously
posted at an employer's place of business in an area accessible to
employees. (ii) The commission shall develop courses of instruction and
conduct ongoing public education efforts as necessary to inform
employers, employees, employment agencies, and job applicants about
their rights and responsibilities under this subdivision.
(c) This subdivision shall not be construed to affect any other
provision of law relating to sex discrimination or pregnancy, or in any
way to diminish the coverage of pregnancy, childbirth, or a medical
condition related to pregnancy or childbirth under any other provision
of this section.
Section 8-107.1
§ 8-107.1 Victims of Domestic Violence, Sex offenses or Stalking. 1.
Definitions. Whenever used in this chapter the following terms shall
have the following meanings:
a. "Acts or threats of violence" shall include, but not be limited to,
acts, which would constitute violations of the penal law.
b. "Victim of domestic violence" shall mean a person who has been
subjected to acts or threats of violence, not including acts of
self-defense, committed by a current or former spouse of the victim, by
a person with whom the victim shares a child in common, by a person who
is cohabiting with or has cohabited with the victim, by a person who is
or has been in a continuing social relationship of a romantic or
intimate nature with the victim, or a person who is or has continually
or at regular intervals lived in the same household as the victim.
c. "Victim of sex offenses or stalking" shall mean a victim of acts
which would constitute violations of article 130 of the penal law, or a
victim of acts which would constitute violations of sections 120.45,
120.50, 120.55, or 120.60 of the penal law.
d. Practices "based on," "because of," "on account of," "as to," "on
the basis of," or "motivated by" an individual's "status as a victim of
domestic violence," or "status as a victim of sex offenses or stalking"
include, but are not limited to, those based solely upon the actions of
a person who has perpetrated acts or threats of violence against the
individual.
2. Unlawful discriminatory practices. It shall be an unlawful
discriminatory practice for an employer, or an agent thereof, to refuse
to hire or employ or to bar or to discharge from employment, or to
discriminate against an individual in compensation or other terms,
conditions, or privileges of employment because of the actual or
perceived status of said individual as a victim of domestic violence, or
as a victim of sex offenses or stalking.
3. Applicability; actual or perceived victims of domestic violence,
sex offenses or stalking.
(a) Requirement to make reasonable accommodation to the needs of
victims of domestic violence, sex offenses or stalking. Except as
provided in paragraph (c), any person prohibited by this section 8-107.1
from discriminating on the basis of actual or perceived status as a
victim of domestic violence or a victim of sex offenses or stalking
shall make reasonable accommodation to enable a person who is a victim
of domestic violence, or a victim of sex offenses or stalking to satisfy
the essential requisites of a job provided that the status as a victim
of domestic violence or a victim of sex offenses or stalking is known or
should have been known by the covered entity.
(b) Documentation of status. Any person required by paragraph (a) to
make reasonable accommodation may require a person requesting reasonable
accommodation pursuant to paragraph (a) to provide certification that
the person is a victim of domestic violence, sex offenses or stalking.
The person requesting reasonable accommodation pursuant to paragraph (a)
shall provide a copy of such certification to the covered entity within
a reasonable period after the request is made. A person may satisfy the
certification requirement of this paragraph by providing documentation
from an employee, agent, or volunteer of a victim services organization,
an attorney, a member of the clergy, or a medical or other professional
service provider, from whom the individual seeking a reasonable
accommodation or that individual's family or household member has sought
assistance in addressing domestic violence, sex offenses or stalking and
the effects of the violence or stalking; a police or court record; or
other corroborating evidence. All information provided to the covered
entity pursuant to this paragraph, including a statement of the person
requesting a reasonable accommodation or any other documentation,
record, or corroborating evidence, and the fact that the individual has
requested or obtained a reasonable accommodation pursuant to this
section, shall be retained in the strictest confidence by the covered
entity, except to the extent that disclosure is requested or consented
to in writing by the person requesting the reasonable accommodation; or
otherwise required by applicable federal, state or local law.
(c) Affirmative defense in domestic violence, sex offenses or stalking
cases. In any case where the need for reasonable accommodation is placed
in issue, it shall be an affirmative defense that the person aggrieved
by the alleged discriminatory practice could not, with reasonable
accommodation, satisfy the essential requisites of the job or enjoy the
right or rights in question.
Section 8-109
§ 8-109 Complaint. (a) Any person aggrieved by an unlawful
discriminatory practice or an act of discriminatory harassment or
violence as set forth in chapter six of this title may, by himself or
herself or such person's attorney, make, sign and file with the
commission a verified complaint in writing which shall: (i) state the
name of the person alleged to have committed the unlawful discriminatory
practice or act of discriminatory harassment or violence complained of,
and the address of such person if known; (ii) set forth the particulars
of the alleged unlawful discriminatory practice or act of discriminatory
harassment or violence; and (iii) contain such other information as may
be required by the commission. The commission shall acknowledge the
filing of the complaint and advise the complainant of the time limits
set forth in this chapter.
(b) Any employer whose employee or agent refuses or threatens to
refuse to cooperate with the provisions of this chapter may file with
the commission a verified complaint asking for assistance by
conciliation or other remedial action.
(c) Commission-initiated complaints. The commission may itself make,
sign and file a verified complaint alleging that a person has committed
an unlawful discriminatory practice or an act of discriminatory
harassment or violence as set forth in chapter six of this title.
(d) The commission shall serve a copy of the complaint upon the
respondent and all persons it deems to be necessary parties and shall
advise the respondent of his or her procedural rights and obligations as
set forth herein.
(e) The commission shall not have jurisdiction over any complaint that
has been filed more than one year after the alleged unlawful
discriminatory practice or act of discriminatory harassment or violence
as set forth in chapter six of this title occurred.
(f) The commission shall not have jurisdiction to entertain a
complaint if:
(i) the complainant has previously initiated a civil action in a court
of competent jurisdiction alleging an unlawful discriminatory practice
as defined by this chapter or an act of discriminatory harassment or
violence as set forth in chapter six of this title with respect to the
same grievance which is the subject of the complaint under this chapter,
unless such civil action has been dismissed without prejudice or
withdrawn without prejudice; or
(ii) the complainant has previously filed and has an action or
proceeding before any administrative agency under any other law of the
state alleging an unlawful discriminatory practice as defined by this
chapter or an act of discriminatory harassment or violence as set forth
in chapter six of this title with respect to the same grievance which is
the subject of the complaint under this chapter; or
(iii) the complainant has previously filed a complaint with the state
division of human rights alleging an unlawful discriminatory practice as
defined by this chapter or an act of discriminatory harassment or
violence as set forth in chapter six of this title with respect to the
same grievance which is the subject of the complaint under this chapter
and a final determination has been made thereon.
(g) In relation to complaints filed on or after September first,
nineteen hundred ninety-one, the commission shall commence proceedings
with respect to the complaint, complete a thorough investigation of the
allegations of the complaint and make a final disposition of the
complaint promptly and within the time periods to be prescribed by rule
of the commission. If the commission is unable to comply with the time
periods specified for completing its investigation and for final
disposition of the complaint, it shall notify the complainant,
respondent, and any necessary party in writing of the reasons for not
doing so.
(h) Any complaint filed pursuant to this section may be amended
pursuant to procedures prescribed by rule of the commission by filing
such amended complaint with the commission and serving a copy thereof
upon all parties to the proceeding.
(i) Whenever a complaint is filed pursuant to paragraph (d) of
subdivision five of section 8-107 of this chapter, no member of the
commission nor any member of the commission staff shall make public in
any manner whatsoever the name of any borrower or identify by a specific
description the collateral for any loan to such borrower except when
ordered to do so by a court of competent jurisdiction or where express
permission has been first obtained in writing from the lender and the
borrower to such publication; provided, however, that the name of any
borrower and a specific description of the collateral for any loan to
such borrower may, if otherwise relevant, be introduced in evidence in
any hearing before the commission or any review by a court of competent
jurisdiction of any order or decision by the commission.
Section 8-111
§ 8-111 Answer. a. Within thirty days after a copy of the complaint is
served upon the respondent by the commission, the respondent shall file
a written, verified answer thereto with the commission, and the
commission shall cause a copy of such answer to be served upon the
complainant and any necessary party.
b. The respondent shall specifically admit, deny, or explain each of
the facts alleged in the complaint, unless the respondent is without
knowledge or information sufficient to form a belief, in which case the
respondent shall so state, and such statement shall operate as a denial.
c. Any allegation in the complaint not specifically denied or
explained shall be deemed admitted and shall be so found by the
commission unless good cause to the contrary is shown.
d. All affirmative defenses shall be stated separately in the answer.
e. Upon request of the respondent and for good cause shown, the period
within which an answer is required to be filed may be extended in
accordance with the rules of the commission.
f. Any necessary party may file with the commission a written,
verified answer to the complaint, and the commission shall cause a copy
of such answer to be served upon the complainant, respondent and any
other necessary party.
g. Any answer filed pursuant to this section may be amended pursuant
to procedures prescribed by rule of the commission by filing such
amended answer with the commission and serving a copy thereof upon the
complainant and any necessary party to the proceeding.
Section 8-112
§ 8-112 Withdrawal of complaints. a. A complaint filed pursuant to
section 8-109 of this chapter may be withdrawn by the complainant in
accordance with rules of the commission at any time prior to the service
of a notice that the complaint has been referred to an administrative
law judge. Such a withdrawal shall be in writing and signed by the
complainant.
b. A complaint may be withdrawn after the service of such notice at
the discretion of the commission.
c. Unless such complaint is withdrawn pursuant to a conciliation
agreement, the withdrawal of a complaint shall be without prejudice:
(i) to the continued prosecution of the complaint by the commission in
accordance with rules of the commission;
(ii) to the initiation of a complaint by the commission based in whole
or in part upon the same facts; or
(iii) to the commencement of a civil action by the corporation counsel
based upon the same facts pursuant to chapter four of this title.
Section 8-113
§ 8-113 Dismissal of complaint. a. The commission may, in its
discretion, dismiss a complaint for administrative convenience at any
time prior to the taking of testimony at a hearing. Administrative
convenience shall include, but not be limited to, the following
circumstances:
(1) commission personnel have been unable to locate the complainant
after diligent efforts to do so;
(2) the complainant has repeatedly failed to appear at mutually agreed
upon appointments with commission personnel or is unwilling to meet with
commission personnel, provide requested documentation, or to attend a
hearing;
(3) the complainant has repeatedly engaged in conduct which is
disruptive to the orderly functioning of the commission;
(4) the complainant is unwilling to accept a reasonable proposed
conciliation agreement;
(5) prosecution of the complaint will not serve the public interest;
and
(6) the complainant requests such dismissal, one hundred eighty days
have elapsed since the filing of the complaint with the commission and
the commission finds (a) that the complaint has not been actively
investigated, and (b) that the respondent will not be unduly prejudiced
thereby.
b. The commission shall dismiss a complaint for administrative
convenience at any time prior to the filing of an answer by the
respondent, if the complainant requests such dismissal, unless the
commission has conducted an investigation of the complaint or has
engaged the parties in conciliation after the filing of the complaint.
c. In accordance with the rules of the commission, the commission
shall dismiss a complaint if the complaint is not within the
jurisdiction of the commission.
d. If after investigation the commission determines that probable
cause does not exist to believe that the respondent has engaged or is
engaging in an unlawful discriminatory practice or an act of
discriminatory harassment or violence as set forth in chapter six of
this title, the commission shall dismiss the complaint as to such
respondent.
e. The commission shall promptly serve notice upon the complainant,
respondent and any necessary party of any dismissal pursuant to this
section.
f. The complainant or respondent may, within thirty days of such
service, and in accordance with the rules of the commission, apply to
the chairperson for review of any dismissal pursuant to this section.
Upon such application, the chairperson shall review such action and
issue an order affirming, reversing or modifying such determination or
remanding the matter for further investigation and action. A copy of
such order shall be served upon the complainant, respondent and any
necessary party.
Section 8-114
§ 8-114 Investigations and investigative record keeping. a. The
commission may at any time issue subpoenas requiring attendance and
giving of testimony by witnesses and the production of books, papers,
documents and other evidence relating to any matter under investigation
or any question before the commission. The issuance of such subpoenas
shall be governed by the civil practice law and rules.
b. Where the commission has initiated its own investigation or has
conducted an investigation in connection with the filing of a complaint
pursuant to this chapter, the commission may demand that any person or
persons who are the subject of such investigation (i) preserve those
records in the possession of such person or persons which are relevant
to the determination of whether such person or persons have committed
unlawful discriminatory practices with respect to activities in the
city, and (ii) continue to make and keep the type of records made and
kept by such person or persons in the ordinary course of business within
the year preceding such demand which are relevant to the determination
of whether such person or persons have committed unlawful discriminatory
practices with respect to activities in the city. A demand made pursuant
to this subdivision shall be effective immediately upon its service on
the subject of an investigation and shall remain in effect until the
termination of all proceedings relating to any complaint filed pursuant
to this chapter or civil action commenced pursuant to chapter four of
this title or if no complaint or civil action is filed or commenced
shall expire two years after the date of such service. The commission's
demand shall require that such records be made available for inspection
by the commission and/or be filed with the commission.
c. Any person upon whom a demand has been made pursuant to subdivision
b of this section may, pursuant to procedures established by rule of the
commission, assert an objection to such demand. Unless the commission
orders otherwise, the assertion of an objection shall not stay
compliance with the demand. The commission shall make a determination on
an objection to a demand within thirty days after such an objection is
filed with the commission, unless the party filing the objection
consents to an extension of time.
d. Upon the expiration of the time set pursuant to such rules for
making an objection to such demand, or upon a determination that an
objection to the demand shall not be sustained, the commission shall
order compliance with the demand.
e. Upon a determination that an objection to a demand shall be
sustained, the commission shall order that the demand be vacated or
modified.
f. A proceeding may be brought on behalf of the commission in any
court of competent jurisdiction seeking an order to compel compliance
with an order issued pursuant to subdivision d of this section.
Section 8-115
§ 8-115 Mediation and conciliation. a. If in the judgment of the
commission circumstances so warrant, it may at any time after the filing
of a complaint endeavor to resolve the complaint by any method of
dispute resolution prescribed by rule of the commission including, but
not limited to, mediation and conciliation.
b. The terms of any conciliation agreement may contain such provisions
as may be agreed upon by the commission, the complainant and the
respondent, including a provision for the entry in court of a consent
decree embodying the terms of the conciliation agreement.
c. The members of the commission and its staff shall not publicly
disclose what transpired in the course of mediation and conciliation
efforts.
d. If a conciliation agreement is entered into, the commission shall
embody such agreement in an order and serve a copy of such order upon
all parties to the conciliation agreement. Violation of such an order
may cause the imposition of civil penalties under section 8-124 of this
chapter. Every conciliation agreement shall be made public unless the
complainant and respondent agree otherwise and the commission determines
that disclosure is not required to further the purposes of this chapter.
Section 8-116
§ 8-116 Determination of probable cause. a. Except in connection with
commission-initiated complaints which shall not require a determination
of probable cause, where the commission determines that probable cause
exists to believe that the respondent has engaged or is engaging in an
unlawful discriminatory practice or an act of discriminatory harassment
or violence as set forth in chapter six of this title, the commission
shall issue a written notice to complainant and respondent so stating. A
determination of probable cause is not a final order of the commission
and shall not be administratively or judicially reviewable.
b. If there is a determination of probable cause pursuant to
subdivision a of this section in relation to a complaint alleging
discrimination in housing accommodations, land or commercial space or an
interest therein, or if a commission-initiated complaint relating to
discrimination in housing accommodations, land or commercial space or an
interest therein has been filed, and the property owner or the owner's
duly authorized agent will not agree voluntarily to withhold from the
market the subject housing accommodations, land or commercial space or
an interest therein for a period of ten days from the date of such
request the commission may cause to be posted for a period of ten days
from the date of such request, in a conspicuous place on the land or on
the door of such housing accommodations or commercial space, a notice
stating that such accommodations, land or commercial space are the
subject of a complaint before the commission and that prospective
transferees will take such accommodations, land or commercial space at
their peril. Any destruction, defacement, alteration or removal of such
notice by the owner or the owner's agents or employees shall be a
misdemeanor punishable on conviction thereof by a fine of not more than
one thousand dollars or by imprisonment for not more than one year or
both.
c. If a determination is made pursuant to subdivision a of this
section that probable cause exists, or if a commission-initiated
complaint has been filed, the commission shall refer the complaint to an
administrative law judge and shall serve a notice upon the complainant,
respondent and any necessary party that the complaint has been so
referred.
Section 8-117
§ 8-117 Rules of Procedure. The commission shall adopt rules providing
for hearing and pre-hearing procedure. These rules shall include rules
providing that the commission, by its prosecutorial bureau, shall be a
party to all complaints and that a complainant shall be a party if the
complainant has intervened in the manner set forth in the rules of the
commission. These rules shall also include rules governing discovery,
motion practice and the issuance of subpoenas. Wherever necessary, the
commission shall issue orders compelling discovery. In accordance with
the commission's discovery rules, any party from whom discovery is
sought may assert an objection to such discovery based upon a claim of
privilege or other defense and the commission shall rule upon such
objection.
Section 8-118
§ 8-118 Noncompliance with discovery order or order relating to
records. Whenever a party fails to comply with an order of the
commission pursuant to section 8-117 of this chapter compelling
discovery or an order pursuant to section 8-114 of this chapter relating
to records the commission may, on its own motion or at the request of
any party, and, after notice and opportunity for all parties to be heard
in opposition or support, make such orders or take such action as may be
just for the purpose of permitting the resolution of relevant issues or
disposition of the complaint without unnecessary delay, including but
not limited to:
(a) An order that the matter concerning which the order compelling
discovery or relating to records was issued be established adversely to
the claim of the noncomplying party;
(b) An order prohibiting the noncomplying party from introducing
evidence or testimony, cross-examining witnesses or otherwise supporting
or opposing designated claims or defenses;
(c) An order striking out pleadings or parts thereof;
(d) An order that the noncomplying party may not be heard to object to
the introduction and use of secondary evidence to show what the withheld
testimony, documents, other evidence or required records would have
shown; and
(e) Infer that the material or testimony is withheld or records not
preserved, made, kept, produced or made available for inspection because
such material, testimony or records would prove to be unfavorable to the
noncomplying party and use such inference to establish facts in support
of a final determination pursuant to section 8-120 of this chapter.
Section 8-119
§ 8-119 Hearing. a. A hearing on the complaint shall be held before an
administrative law judge designated by the commission. The place of any
such hearing shall be the office of the commission or such other place
as may be designated by the commission. Notice of the date, time and
place of such hearing shall be served upon the complainant, respondent
and any necessary party.
b. The case in support of the complaint shall be presented before the
commission by the commission's prosecutorial bureau. The complainant may
present additional testimony and cross-examine witnesses, in person or
by counsel, if the complainant shall have intervened pursuant to rules
established by the commission.
c. The administrative law judge may, in his or her discretion, permit
any person who has a substantial interest in the complaint to intervene
as a party and may require the joinder of necessary parties.
d. Evidence relating to endeavors at mediation or conciliation by,
between or among the commission, the complainant and the respondent
shall not be admissible.
e. If the respondent has failed to answer the complaint within the
time period prescribed in section 8-111 of this chapter, the
administrative law judge may enter a default and the hearing shall
proceed to determine the evidence in support of the complaint. Upon
application, the administrative law judge may, for good cause shown,
open a default in answering, upon equitable terms and conditions,
including the taking of an oral answer.
f. Except as otherwise provided in section 8-118 of this chapter, the
commission by its prosecutorial bureau, a respondent who has filed an
answer or whose default in answering has been set aside for good cause
shown, a necessary party, and a complainant or other person who has
intervened pursuant to the rules of the commission, may appear at such
hearing in person or otherwise, with or without counsel, cross-examine
witnesses, present testimony and offer evidence.
g. The commission shall not be bound by the strict rules of evidence
prevailing in courts of the state of New York. The testimony taken at
the hearing shall be under oath and shall be transcribed.
Section 8-120
§ 8-120 Decision and order. a. If, upon all the evidence at the
hearing, and upon the findings of fact, conclusions of law and relief
recommended by an administrative law judge, the commission shall find
that a respondent has engaged in any unlawful discriminatory practice or
any act of discriminatory harassment or violence as set forth in chapter
six of this title, the commission shall state its findings of fact and
conclusions of law and shall issue and cause to be served on such
respondent an order requiring such respondent to cease and desist from
such unlawful discriminatory practice or acts of discriminatory
harassment or violence. Such order shall require the respondent to take
such affirmative action as, in the judgment of the commission, will
effectuate the purposes of this chapter including, but not limited to:
(1) hiring, reinstatement or upgrading of employees;
(2) the award of back pay and front pay;
(3) admission to membership in any respondent labor organization;
(4) admission to or participation in a program, apprentice training
program, on-the-job training program or other occupational training or
retraining program;
(5) the extension of full, equal and unsegregated accommodations,
advantages, facilities and privileges;
(6) evaluating applications for membership in a club that is not
distinctly private without discrimination based on race, creed, color,
age, national origin, disability, marital status, partnership status,
gender, sexual orientation or alienage or citizenship status;
(7) selling, renting or leasing, or approving the sale, rental or
lease of housing accommodations, land or commercial space or an interest
therein, or the provision of credit with respect thereto, without
unlawful discrimination;
(8) payment of compensatory damages to the person aggrieved by such
practice or act; and
(9) submission of reports with respect to the manner of compliance.
b. If, upon all the evidence at the hearing, and upon the findings of
fact and conclusions of law recommended by the administrative law judge,
the commission shall find that a respondent has not engaged in any such
unlawful discriminatory practice or act of discriminatory harassment or
violence as set forth in chapter six of this title, the commission shall
state its findings of fact and conclusions of law and shall issue and
cause to be served on the complainant, respondent, and any necessary
party and on any complainant who has not intervened an order dismissing
the complaint as to such respondent.
Section 8-121
§ 8-121 Reopening of proceeding by commission. The commission may
reopen any proceeding, or vacate or modify any order or determination of
the commission, whenever justice so requires, in accordance with the
rules of the commission.
Section 8-122
§ 8-122 Injunction and temporary restraining order. At any time after
the filing of a complaint alleging an unlawful discriminatory practice
under this chapter or an act of discriminatory harassment or violence as
set forth in chapter six of this title, if the commission has reason to
believe that the respondent or other person acting in concert with
respondent is doing or procuring to be done any act or acts, tending to
render ineffectual relief that could be ordered by the commission after
a hearing as provided by section 8-120 of this chapter, a special
proceeding may be commenced in accordance with article sixty-three of
the civil practice law and rules on behalf of the commission in the
supreme court for an order to show cause why the respondent and such
other persons who are believed to be acting in concert with respondent
should not be enjoined from doing or procuring to be done such acts. The
special proceeding may be commenced in any county within the city of New
York where the alleged unlawful discriminatory practice or act of
discriminatory harassment or violence was committed, or where the
commission maintains its principal office for the transaction of
business, or where any respondent resides or maintains an office for the
transaction of business, or where any person aggrieved by the unlawful
discriminatory practice or act of discriminatory harassment or violence
resides, or, if the complaint alleges an unlawful discriminatory
practice under paragraphs (a), (b) or (c) of subdivision five of section
8-107 of this chapter, where the housing accommodation, land or
commercial space specified in the complaint is located. The order to
show cause may contain a temporary restraining order and shall be served
in the manner provided therein. On the return date of the order to show
cause, and after affording the commission, the person aggrieved and the
respondent and any person alleged to be acting in concert with the
respondent an opportunity to be heard, the court may grant appropriate
injunctive relief upon such terms and conditions as the court deems
proper.
Section 8-123
§ 8-123 Judicial review. a. Any complainant, respondent or other
person aggrieved by a final order of the commission issued pursuant to
section 8-120 or section 8-126 of this chapter or an order of the
chairperson issued pursuant to subdivision f of section 8-113 of this
chapter affirming the dismissal of a complaint may obtain judicial
review thereof in a proceeding as provided in this section.
b. Such proceeding shall be brought in the supreme court of the state
within any county within the city of New York wherein the unlawful
discriminatory practice or act of discriminatory harassment or violence
as set forth in chapter six of this title which is the subject of the
commission's order occurs or wherein any person required in the order to
cease and desist from an unlawful discriminatory practice or act of
discriminatory harassment or violence or to take other affirmative
action resides or transacts business.
c. Such proceeding shall be initiated by the filing of a petition in
such court, together with a written transcript of the record upon the
hearing, before the commission, and the issuance and service of a notice
of motion returnable before such court. Thereupon the court shall have
jurisdiction of the proceeding and of the questions determined therein,
and shall have power to grant such relief as it deems just and proper,
and to make and enter upon the pleadings, testimony, and proceedings set
forth in such transcript an order annulling, confirming or modifying the
order of the commission in whole or in part. No objection that has not
been urged before the commission shall be considered by the court,
unless the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.
d. Any party may move the court to remit the case to the commission in
the interests of justice for the purpose of adducing additional
specified and material evidence and seeking findings thereon, provided
such party shows reasonable grounds for the failure to adduce such
evidence before the commission.
e. The findings of the commission as to the facts shall be conclusive
if supported by substantial evidence on the record considered as a
whole.
f. All such proceedings shall be heard and determined by the court and
by any appellate court as expeditiously as possible and with lawful
precedence over other matters. The jurisdiction of the supreme court
shall be exclusive and its judgment and order shall be final, subject to
review by the appellate division of the supreme court and the court of
appeals in the same manner and form and with the same effect as provided
for appeals from a judgment in a special proceeding.
g. The commission's copy of the testimony shall be available at all
reasonable times to all parties for examination without cost and for the
purposes of judicial review of the order of the commission. The appeal
shall be heard on the record without requirement of printing.
h. A proceeding under this section must be instituted within thirty
days after the service of the order of the commission.
Section 8-124
§ 8-124 Civil penalties for violating commission orders. Any person
who fails to comply with an order issued by the commission pursuant to
section 8-115 or section 8-120 of this chapter shall be liable for a
civil penalty of not more than fifty thousand dollars and an additional
civil penalty of not more than one hundred dollars per day for each day
that the violation continues.
Section 8-125
§ 8-125 Enforcement. a. Any action or proceeding that may be
appropriate or necessary for the enforcement of any order issued by the
commission pursuant to this chapter, including actions to secure
permanent injunctions enjoining any acts or practices which constitute a
violation of any such order, mandating compliance with the provisions of
any such order, imposing penalties pursuant to section 8-124 of this
chapter, or for such other relief as may be appropriate, may be
initiated in any court of competent jurisdiction on behalf of the
commission. In any such action or proceeding, application may be made
for a temporary restraining order or preliminary injunction, enforcing
and restraining all persons from violating any provisions of any such
order, or for such other relief as may be just and proper, until hearing
and determination of such action or proceeding and the entry of final
judgment or order thereon. The court to which such application is made
may make any or all of the orders specified, as may be required in such
application, with or without notice, and may make such other or further
orders or directions as may be necessary to render the same effectual.
b. In any action or proceeding brought pursuant to subdivision a of
this section, no person shall be entitled to contest the terms of the
order sought to be enforced unless that person has timely commenced a
proceeding for review of the order pursuant to section 8-123 of this
chapter.
Section 8-126
§ 8-126 Civil penalties imposed by commission for unlawful
discriminatory practices or acts of discriminatory harassment or
violence. a. Except as otherwise provided in subdivision thirteen of
section 8-107 of this chapter, in addition to any of the remedies and
penalties set forth in subdivision a of section 8-120 of this chapter,
where the commission finds that a person has engaged in an unlawful
discriminatory practice, the commission may, to vindicate the public
interest, impose a civil penalty of not more than one hundred and
twenty-five thousand dollars. Where the commission finds that an
unlawful discriminatory practice was the result of the respondent's
willful, wanton or malicious act or where the commission finds that an
act of discriminatory harassment or violence as set forth in chapter six
of this title has occurred, the commission may, to vindicate the public
interest, impose a civil penalty of not more than two hundred and fifty
thousand dollars.
b. A respondent that is found liable for an unlawful discriminatory
practice or an act of discriminatory harassment or violence, as set
forth in chapter six of this title, may, in relation to the
determination of the appropriate amount of civil penalties to be imposed
pursuant to subdivision a of this section, plead and prove any relevant
mitigating factor.
c. In addition to any other penalties or sanctions which may be
imposed pursuant to any other law, any person who knowingly makes a
material false statement in any proceeding conducted, or document or
record filed with the commission, or record required to be preserved or
made and kept and subject to inspection by the commission pursuant to
this chapter shall be liable for a civil penalty of not more than ten
thousand dollars.
d. An action or proceeding may be commenced in any court of competent
jurisdiction on behalf of the commission for the recovery of the civil
penalties provided for in this section.
Section 8-127
§ 8-127 Disposition of civil penalties. a. Any civil penalties
recovered pursuant to this chapter shall be paid into the general fund
of the city.
b. Notwithstanding the foregoing provision, where an action or
proceeding is commenced against a city agency for the enforcement of a
final order issued by the commission pursuant to section 8-120 of the
code after a finding that such agency has engaged in an unlawful
discriminatory practice and in such action or proceeding civil penalties
are sought for violation of such order, any civil penalties which are
imposed by the court against such agency shall be budgeted in a separate
account. Such account shall be used solely to support city agencies'
anti-bias education programs, activities sponsored by city agencies that
are designed to eradicate discrimination or to fund remedial programs
that are necessary to address the city's liability for discriminatory
acts or practices. Funds in such account shall not be used to support or
benefit the commission. The disposition of such funds shall be under the
direction of the mayor.
Section 8-128
§ 8-128 Institution of actions or proceedings. Where any of the
provisions of this chapter authorize an application to be made, or an
action or proceeding to be commenced on behalf of the commission in a
court, such application may be made or such action or proceeding may be
instituted only by the corporation counsel, such attorneys employed by
the commission as are designated by the corporation counsel or other
persons designated by the corporation counsel.
Section 8-129
§ 8-129 Criminal penalties. In addition to any other penalties or
sanctions which may be imposed pursuant to this chapter or any other
law, any person who shall wilfully resist, prevent, impede or interfere
with the commission or any of its members or representatives in the
performance of any duty under this chapter, or shall wilfully violate an
order of the commission issued pursuant to section 8-115 or section
8-120 of this chapter, shall be guilty of a misdemeanor and be
punishable by imprisonment for not more than one year, or by a fine of
not more than ten thousand dollars, or by both; but the procedure for
the review of the order shall not be deemed to be such wilful conduct.
Section 8-130
§ 8-130 Construction. The provisions of this title shall be construed
liberally for the accomplishment of the uniquely broad and remedial
purposes thereof, regardless of whether federal or New York State civil
and human rights laws, including those laws with provisions
comparably-worded to provisions of this title, have been so construed.
Section 8-131
§ 8-131 Applicability. The provisions of this chapter which make acts
of discriminatory harassment or violence as set forth in chapter six of
this title subject to the jurisdiction of the commission shall not apply
to acts committed by members of the police department in the course of
performing their official duties as police officers whether the police
officer is on or off duty.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
Special thanks to Benjarmin Kallos and Thom Neale who made this content publicly available as a bulk download.