§ 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, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, or immigration or citizenship status of any person:
(1) To represent that any employment or position is not available when in fact it is available;
(2) To refuse to hire or employ or to bar or to discharge from employment such person; or
(3) 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, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, or immigration or citizenship status in receiving, classifying, disposing or otherwise acting upon applications for its services, including by representing to such person that any employment or position is not available when in fact it is available, 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, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, or immigration or citizenship status of any person, to exclude or to expel from its membership such person, to represent that membership is not available when it is in fact available, 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, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, or immigration or citizenship status, or any intent to make any such limitation, specification or discrimination.
(e) The provisions of this subdivision and subdivision 2 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 1974 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 paragraphs (e) and (f) of subdivision 3-a of section 296 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 do not govern the employment by an employer of the employer's 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 the definition of employer set forth in section 8-102.
(g) (1) The provisions of this subdivision relating to height and weight shall not apply to an action by a covered entity based on a person’s height or weight when such action is
(A) required by federal, state, or local law or regulation, or
(B) permitted by regulation adopted by the commission identifying particular jobs or categories of jobs for which
(i) a person’s height or weight could prevent performing the essential requisites of the job, and
(ii) the commission has not found alternative action that covered entities could reasonably take to allow persons who do not meet the height or weight criteria to perform the essential requisites of the job or category of jobs, or
(C) permitted by regulation adopted by the commission identifying particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.
(2) In instances where a covered entity’s action is not required by law or regulation or permitted by regulation as described in paragraph 1, it shall be an affirmative defense that
(A) a person’s height or weight prevents the person from performing the essential requisites of the job, and there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential requisites of the job, or
(B) the covered entity’s decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.
(3) Nothing in this subdivision shall prevent a covered entity from offering incentives that support weight management as part of a voluntary wellness program.
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 such person's actual or perceived race, creed, color, national origin, gender, age, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, immigration or citizenship status or status as a victim of domestic violence or as a victim of sex offenses or stalking 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, or to represent that such program is not available when in fact it is available.
(c) To discriminate against any person in such person's 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, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, immigration or citizenship status or status as a victim of domestic violence or as a victim of sex offenses or stalking.
(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, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, immigration or citizenship status or status as a victim of domestic violence or as a victim of sex offenses or stalking, 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, such person's 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 such person's place of employment during any day or days or portion thereof that, as a requirement of such person's religion, such person observes as a sabbath or other holy day, including a reasonable time prior and subsequent thereto for travel between such person's place of employment and such person's 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 the employee is employed.
4. Public accommodations.
a. It shall be an unlawful discriminatory practice for any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation:
1. Because of any person's actual or perceived race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation, uniformed service, height, weight, or immigration or citizenship status, directly or indirectly:
(a) To refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation; or
(b) To represent to any person that any accommodation, advantage, facility or privilege of any such place or provider of public accommodation is not available when in fact it is available; or
2. 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:
(a) Full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, facilities and privileges of any such place or provider of public accommodation 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, uniformed service, height, weight, or immigration or citizenship status; or
(b) The patronage or custom of any person is unwelcome, objectionable, not acceptable, undesired or unsolicited because of such person's actual or perceived race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation, uniformed service, height, weight, or immigration or citizenship status.
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 3201-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 45 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 section relating to disparate impact shall not apply to the use of standardized tests as defined by section 340 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.
g. 1. The provisions of this subdivision relating to height and weight shall not apply to an action by a covered entity based on a person’s height or weight when such action is (i) required by federal, state, or local law or regulation; or (ii) permitted by regulation adopted by the commission allowing consideration of height or weight because such action is reasonably necessary for the normal operations of a particular place or provider of accommodation, or a category of such places or providers, and there is no alternative action the covered entity could reasonably take that would allow patrons to use or enjoy the accommodations, advantages, services, facilities, or privileges of the place or provider of public accommodation.
2. In instances where a covered entity’s action is not required by law or regulation or permitted by regulation as described in paragraph 1, it shall be an affirmative defense that a covered entity took an action based on a person’s height or weight because such action is reasonably necessary for its normal operations and there is no alternative action the covered entity could reasonably take that would allow patrons to use or enjoy the accommodations, advantages, services, facilities, or privileges of the place or provider of public accommodation.
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) Because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, uniformed service, height, weight, marital status, partnership status, or immigration or citizenship status of any person or group of 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:
(a) To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any such person or group of persons such a housing accommodation or an interest therein;
(b) To discriminate against any such person or persons 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; or
(c) To represent to such person or persons that any housing accommodation or an interest therein is not available for inspection, sale, rental or lease when in fact it is available to such person.
(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 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, uniformed service, height, weight, marital status, partnership status, or immigration 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.
(3) [Reserved.]
(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 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) Because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, uniformed service, marital status, partnership status, or immigration or citizenship status of any person or group of persons, or because children are, may be or would be residing with any person or persons:
(A) To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny or to withhold from any such person or group of persons land or commercial space or an interest therein;
(B) To discriminate against any such person or persons 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; or
(C) To represent to any person or persons that any land or commercial space or an interest therein is not available for inspection, sale, rental or lease when in fact it is available.
(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 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, uniformed service, marital status, partnership status, or immigration 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, uniformed service, marital status, partnership status, or immigration 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, uniformed service, marital status, partnership status, or immigration 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, uniformed service, marital status, partnership status, or immigration 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, uniformed service, marital status, partnership status, national origin, immigration 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.
(1) 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, including unincorporated entities and entities incorporated in any 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:
(A) To discriminate against such applicant 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:
(i) Because of the actual or perceived race, creed, color, national origin, gender, disability, sexual orientation, age, marital status, uniformed service, partnership status, or immigration or citizenship status of such applicant, any member, stockholder, director, officer or employee of such applicant, or the occupants or tenants or prospective occupants or tenants of such housing accommodation, land or commercial space; or
(ii) Because children are, may be or would be residing with such applicant or other person.
(B) 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, uniformed service, age, marital status, partnership status, or immigration or citizenship status, or whether children are, may be, or would be residing with a person.
(2) 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, including unincorporated entities and entities incorporated in any jurisdiction, or any officer, agent or employee thereof to represent to any person that any type or term of loan, mortgage or other form of financial assistance for the purchase, acquisition, construction, rehabilitation, repair or maintenance of such housing accommodation, land or commercial space or an interest therein is not available when in fact it is available:
(A) Because of the actual or perceived race, creed, color, national origin, gender, disability, sexual orientation, uniformed service, age, marital status, partnership status, or immigration or citizenship status of such person, any member, stockholder, director, officer or employee of such person, or the occupants or tenants or prospective occupants or tenants of such housing accommodation, land or commercial space; or
(B) Because children are, may be or would be residing with a person.
(e) Real estate services. It shall be an unlawful discriminatory practice, because of the actual or perceived race, creed, color, national origin, gender, disability, sexual orientation, uniformed service, age, marital status, partnership status, or immigration or citizenship status of any person or because children are, may be or would be residing with such person:
(1) To deny such person access to, membership in or participation in a multiple listing service, real estate brokers' organization, or other service; or
(2) To represent to such person that access to or membership in such service or organization is not available, when in fact it is available.
(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, uniformed service, age, marital status, partnership status, or immigration or citizenship status of any person or because children are, may be or would be residing with such person.
(g) Applicability; persons under 18 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 18 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 2 and 3 of subdivision (b) of section 3607 of title 42 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 55 years of age or older. This paragraph shall not be construed to permit discrimination against such persons 55 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 45 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 296 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 subdivision.
(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 on account of a person's occupation in:
(1) The sale, rental, or leasing of such housing accommodation or interest therein;
(2) The terms, conditions and privileges of the sale, rental or leasing of such housing accommodation or interest therein;
(3) Furnishing facilities or services in connection therewith; and
(4) Representing whether or not such housing accommodation or interest therein is available for sale, rental, or leasing.
(o) Protections based on criminal history; housing.
(1) 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, or any real estate broker or agent or employee thereof to:
(A) Refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any individual such a housing accommodation or an interest therein because of such individual’s criminal history, other than an individual’s reviewable criminal history obtained and considered in conformity with this paragraph;
(B) Discriminate against any individual 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, because of such individual’s criminal history;
(C) Represent to any individual that any housing accommodation or an interest therein is not available for inspection, sale, rental, or lease because of such individual’s criminal history, except when consideration of such criminal history is permitted by, and the covered entity has complied with, the procedures required under this paragraph;
(D) Declare, print, or circulate, or cause to be declared, printed, or circulated, any statement, advertisement, or publication, or use any form of application for the purchase, rental or lease of such a housing accommodation or an interest therein, which expresses, directly or indirectly, any limitation, specification, or discrimination in housing because of an individual’s criminal history; except as permitted under this paragraph; or
(E) Conduct a criminal background check in connection with the prospective purchase, or prospective or continuing rental or lease, of a housing accommodation, except where conducted in conformity with this paragraph.
(2) Nothing in subparagraph (1) shall prohibit a covered entity from taking any lawful adverse action against an individual, including a current occupant, for reasons other than such individual’s criminal history, including acts of physical violence committed by such individual against other persons or property on the premises, or other acts that would adversely affect the health, safety, or welfare of other residents, nor shall such paragraph excuse a covered entity from complying with applicable laws relating to victims of domestic violence, sex offenses, or stalking.
(3) Nothing in subparagraph (1) shall:
(A) Prohibit a covered entity from making any statement, communication, advertisement, publication, or application that is required or specifically authorized by a federal, state or local law, rule, or regulation, provided that any such statement, communication, advertisement, publication, or application shall include a citation to the law, rule, or regulation that requires or permits such action;
(B) Prohibit a covered entity from denying a housing accommodation based on an individual’s criminal history where such denial is required or specifically authorized by federal, state, or local law, rule, or regulation, provided that such covered entity shall provide such individual with notice of the law, rule, or regulation that requires or specifically authorizes such action and, where the law permits but does not require an adverse action, provided that such covered entity complies with the requirements of subparagraphs (4), (5), and (6) of this paragraph; or
(C) Prohibit a covered entity from conducting a criminal background check pursuant to any federal, state, or local law, rule, or regulation that requires or specifically authorizes a criminal background check for housing eligibility, provided that, where the law permits but does not require an adverse action, such covered entity complies with the requirements of subparagraphs (4), (5), and (6) of this paragraph.
(4) Preliminary determination and notice of criminal background check. Except where following this process would conflict with a requirement of federal or state law, rule, or regulation, a covered entity that intends to conduct a criminal background check of an individual in connection with a prospective purchase, or prospective or continuing rental or lease of a housing accommodation, shall not conduct such criminal background check until such covered entity has taken the following actions:
(A) In the case of a transaction involving the purchase of housing or shares in housing, the seller has accepted an offer and agreed in writing that the seller will not revoke the acceptance or change the conditions of the deal on the basis of the buyer’s criminal history except as permitted by this paragraph;
(B) In the case of any other transaction involving lease or rental, the covered entity has provided to such individual a rental or lease agreement that commits the housing accommodation to the applicant, which may only be revoked based on a criminal background check conducted in accordance with the fair chance housing process set forth in subparagraph (5), or upon an unrelated material omission, misrepresentation, or change in the qualifications for tenancy that was not known at the time of the conditional offer;
(C) In all such cases, has provided such individual notice of such criminal background check and a written copy of the city’s fair chance housing notice summarizing the rights in this paragraph, which shall be created and made publicly available by the commission.
(5) Fair chance housing process. After providing notice of a criminal background check, and prior to taking any adverse action because of an individual’s reviewable criminal history, and except where such action conflicts with a requirement of federal or state law, rule, or regulation, the covered entity shall:
(A) Provide the applicant a written copy of:
(i) Any information or records about reviewable criminal history based on which the covered entity intends to take adverse action;
(ii) Any information about such individual’s criminal history, other than their reviewable criminal history, that the covered entity received, even if the covered entity did not consider such information in making its determination; and
(iii) Provide notice that such individual may, no later than five business days following the receipt of such information, submit to the covered entity any information identifying errors in the criminal history information provided by the covered entity, and any supplemental or mitigating information in support of their application for purchase, rental, or lease.
(6) Adverse action based on reviewable criminal history. If, after conducting the fair chance housing process pursuant to subparagraph (5) of this paragraph, a covered entity considers taking adverse action because of an individual’s reviewable criminal history, such covered entity shall first:
(A) Conduct an individualized assessment of the individual’s reviewable criminal history and timely information submitted by such individual pursuant to subparagraph (5) of this paragraph; and
(B) Provide such individual with a written copy of the reason for the adverse action, including:
(i) A copy of supporting documents that were reviewed; and
(ii) A written statement of the reason for such adverse action, demonstrating: (i) how the individual’s reviewable criminal history is relevant to a legitimate business interest of the property owner, and (ii) how any information submitted in support of such individual’s tenancy was taken into account.
(7) If a covered entity utilizes a third party to conduct a consumer background check or criminal background check on their behalf, such covered entity shall take reasonable steps to ensure that such check is conducted consistent with the provisions of this paragraph. Except where a covered entity’s actions are required or authorized pursuant to federal, state, or local law, a covered entity may be liable for relying on criminal history other than reviewable criminal history if the covered entity failed to take reasonable steps to ensure compliance with this paragraph. Where a covered entity knowingly receives criminal history information other than reviewable criminal history information, such receipt creates a rebuttable presumption that the covered entity relied on such information in violation of this paragraph, which such covered entity may rebut by affirmatively showing that they complied with the fair housing process described in subparagraphs (4), (5), and (6) and did not rely on such information in making a determination about a sale, rental, or lease.
(8) This paragraph shall not apply to the sale or rental of:
(A) A housing accommodation, other than a publicly-assisted housing accommodation, in a building that 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; or
(B) 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.
(9) A covered entity shall be immune from liability in any civil action arising as a result of an alleged act of an individual with a criminal history based on the claim that the covered entity should not have sold, rented or leased, or otherwise granted a housing accommodation or an interest therein, to such individual or as a result of a covered entity's decision not to perform a criminal background check.
(p) For purposes of this paragraph, the term "CityFHEPS" means the city fighting homelessness and eviction prevention supplement program established pursuant to chapter 10 of title 68 of the rules of the city of New York or any successor program. The commission shall develop and disseminate a written notice of protections of this subdivision related to lawful source of income. The notice shall be made available to the department of social services for use in accordance with section 21-141.1. The notice shall include, at a minimum, the following information:
(1) Examples of different forms of lawful source of income;
(2) A description of covered entities required not to discriminate on the basis of lawful sources of income;
(3) Examples of actions that may indicate discrimination based on lawful source of income in violation of title 8, such as refusing to accept lawful source of income for rent payment, publishing any type of advertisement that indicates a refusal to accept any lawful source of income, and refusing or delaying repairs because a person uses any lawful source of income for rent payment, publishing any type of advertisement that indicates a refusal to accept any lawful source of income, and any additional actions landlords or brokers use to unlawfully discriminate against a person on the basis of their using any lawful source of income;
(4) A statement that it is illegal for covered entities to refuse to accept a CityFHEPS subsidy for payment of rent or a security deposit voucher in buildings subject to the prohibition on discrimination on the basis of lawful source of income pursuant to section 8-107;
(5) A statement that it is illegal for covered entities to request additional payments for rent, a security deposit or broker's fee because an individual receives rental assistance;
(6) A statement that it is illegal for covered entities to publish any type of advertisement that indicates a refusal to accept rental assistance;
(7) A statement that it is illegal for landlords to refuse or delay making repairs to an individual's unit because such individual pays rent with a CityFHEPS subsidy;
(8) A statement that an individual has the right to be free from discriminatory, harassing or threatening behavior or comments based on such individual's receipt of or application for CityFHEPS;
(9) Directions on how to contact the commission, the department of social services' source of income discrimination unit, the state division of human rights and the office of the state attorney general;
(10) A description of potential remedies available at the commission if a covered entity is found to have engaged in discrimination based on lawful source of income; and
(11) Any other information deemed appropriate by the commissioner and the commission in consultation with the department of social services.
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, (v) requested a reasonable accommodation under this chapter, or (vi) 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, registrations and permits.
(a) It shall be an unlawful discriminatory practice:
(1) Except as otherwise provided in paragraph c of this subdivision, for an agency authorized to issue a license, registration or permit or an employee thereof to falsely deny the availability of such license, registration or permit, or otherwise discriminate against an applicant, or a putative or prospective applicant for a license, registration or permit because of the actual or perceived race, creed, color, national origin, age, gender, marital status, partnership status, disability, sexual orientation, uniformed service or immigration or citizenship status of such applicant.
(2) Except as otherwise provided in paragraph (c) of this subdivision, for an agency authorized to issue a license, registration 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, registration 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, uniformed service or immigration or citizenship status, or any intent to make any such limitation, specification or discrimination.
(3) For any person to deny any license, registration or permit to any applicant, or act adversely upon any holder of a license, registration or permit by reason of such applicant or holder 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 such applicant or holder having been convicted of one or more criminal offenses, when such denial or adverse action is in violation of the provisions of article 23-a of the correction law.
(4) For any person to make any inquiry in writing or otherwise about, or deny any license, registration or permit to any applicant for, or act adversely upon any holder of a license, registration or permit, by reason of such applicant or holder having been arrested or accused of committing a crime, when such inquiry, denial or adverse action is in violation of subdivision 16 of section 296 of article 15 of the executive law.
(5) Unless specifically required by law, for any person to make any inquiry in writing or otherwise about, or deny any license, registration or permit to any applicant, or act adversely upon any applicant for or holder of a license, registration or permit by reason of:
(i) such applicant or holder having a conviction for a violation as defined in section 10.00 of the penal law;
(ii) such applicant or holder having been convicted of a non-criminal offense, as defined by a law of another state; or
(iii) an arrest or criminal accusation which was followed by a conviction described in this subparagraph.
(iv) This subparagraph does not apply to any license, registration, or permit issued by the business integrity commission.
(b) (1) Except as otherwise provided in this paragraph, it shall be an unlawful discriminatory practice for an agency to request or use for licensing, registration or permitting purposes information contained in the consumer credit history of an applicant, licensee, registrant or permittee for licensing or permitting purposes.
(2) Subparagraph (1) of this paragraph shall not apply to an agency required by state or federal law or regulations to use an individual's consumer credit history for licensing, registration or permitting purposes.
(3) Subparagraph (1) of this paragraph shall not be construed to affect the ability of an agency to consider an applicant's, licensee's, registrant's or permittee's failure to pay any tax, fine, penalty, or fee for which liability has been admitted by the person liable therefor, or for which judgment has been entered by a court or administrative tribunal of competent jurisdiction, or any tax for which a government agency has issued a warrant, or a lien or levy on property.
(4) Nothing in this paragraph shall preclude a licensing agency from requesting, receiving, or using consumer credit history information obtained pursuant to a lawful subpoena, court order or law enforcement investigation.
(c) The prohibition of this subdivision relating to inquiries, denials or other adverse action related to a person's record of arrests or convictions shall not apply to licensing activities in relation to the regulation of explosives, pistols, handguns, rifles, shotguns, or other firearms and deadly weapons. Nothing contained in this subdivision shall be construed to bar an agency authorized to issue a license, registration or permit from using age, disability, criminal conviction or arrest record as a criterion for determining eligibility or continuing fitness for a license, registration or permit when specifically required to do so by any other provision of law.
(d) (1) Except as otherwise provided in this paragraph, it shall be an unlawful discriminatory practice for an agency to request or use for licensing or permitting purposes information contained in the consumer credit history of an applicant, licensee or permittee.
(2) Subparagraph (1) of this paragraph shall not apply to an agency required by state or federal law or regulations to use an individual's consumer credit history for licensing or permitting purposes.
(3) Subparagraph (1) of this paragraph shall not be construed to affect the ability of an agency to consider an applicant's, licensee's, registrant's or permittee's failure to pay any tax, fine, penalty, or fee for which liability has been admitted by the person liable therefor, or for which judgment has been entered by a court or administrative tribunal of competent jurisdiction, or any tax for which a government agency has issued a warrant, or a lien or levy on property.
(4) Nothing in this paragraph shall preclude a licensing agency from requesting, receiving, or using consumer credit history information obtained pursuant to a lawful subpoena, court order or law enforcement investigation.
(e) The provisions of this subdivision shall be enforceable against public agencies and employees thereof by a proceeding brought pursuant to article 78 of the civil practice law and rules.
10. Employment actions based on pending arrests and criminal accusations, and criminal convictions preceding and during employment.
(a) Actions prohibited by state law concerning criminal convictions preceding employment. It shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to deny employment to any person or take adverse action against any employee by reason of such person or employee having been convicted of one or more criminal offenses, or by reason of finding the person lacks "good moral character" based on such person or employee having been convicted of one or more criminal offenses, when such denial or adverse action is in violation of the provisions of article 23-A of the correction law.
(b) Criminal convictions during employment. It shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to take adverse action against any employee by reason of such person having been convicted during their employment of one or more criminal offenses, or by reason of finding the person lacks "good moral character" based on such person having been convicted during their employment of one or more criminal offenses, unless, after considering the relevant fair chance factors, the employer determines that either (i) there is a direct relationship between the criminal conviction and the employment held by the person; or (ii) the continuation of the employment would involve an unreasonable risk to property, or to the safety or welfare of specific individuals or the general public.
(c) Pending arrests and criminal accusations preceding and during employment. It shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to take adverse action against any applicant or employee based on an arrest or criminal accusation that is pending, or by reason of finding the person lacks "good moral character" based on such a pending arrest or criminal accusation, unless, after considering the relevant fair chance factors, the employer determines that either (i) there is a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought or held by the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
(d) For purposes of paragraphs (b) and (c), placing an employee on unpaid leave for a reasonable time while the employer takes the steps described in such paragraphs and subdivision 11-a of this section shall not be deemed to be an adverse action.
(e) For purposes of this subdivision, an action that has been adjourned in contemplation of dismissal shall not be considered a pending action unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution.
(f) Paragraphs (b) and (c) of this subdivision shall not apply to an applicant for employment or a current employee employed (i) as a police officer or peace officer, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or (ii) at a law enforcement agency as that term is used in article 23-A of the correction law.
(g) Nothing in this section shall prevent an employer from taking adverse action against an applicant or employee who is found to have made intentional misrepresentations regarding their arrest or conviction history, provided that such adverse action is not based on a failure to divulge information that a person may not be required to divulge, as provided in subdivision 16 of section 296 of article 15 of the executive law and in subdivision 11 of this section, and provided further that the employer provides the applicant or employee with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and gives the person a reasonable time to respond.
(h) Paragraphs (b) and (c) shall not apply to public agencies taking adverse action against an employee based upon a pending arrest or criminal accusation that preceded or arose during employment, or convictions that occurred during employment, where the employee is entitled to a disciplinary process as set forth in section 75 of the civil service law, or where the public agency follows a disciplinary process set forth in agency rules or as required by law.
(i) The provisions of this subdivision shall not apply where a mandatory forfeiture, disability or bar to employment is imposed by law and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.
(j) The provisions of this subdivision shall be enforceable against public agencies by a proceeding brought pursuant to article 78 of the civil practice law and rules, and the provisions of this subdivision shall be enforceable against other employers by the commission through the administrative procedure provided for in this chapter or as provided in chapter 5 of this title.
11. Non-pending arrests and criminal accusations, and dispositions of charges that an employer may not consider.
(a) Non-pending arrests and criminal accusations; adjournments in contemplation of dismissal; youthful offender adjudications; convictions sealed pursuant to certain sections of the criminal procedure law. It shall be an unlawful discriminatory practice, unless specifically required or permitted by any other law, for any person to make any inquiry in writing or otherwise about, or deny employment to, any applicant or act adversely upon any employee by reason of an arrest of or criminal accusation against such applicant or employee when such inquiry, denial or adverse action is in violation of subdivision 16 of section 296 of article 15 of the executive law.
(b) Violations and non-criminal offenses that have not been sealed.
(1) It shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to make any inquiry in writing or otherwise about, or deny employment to any person or take adverse action against any employee, based on the applicant or employee having:
(i) been convicted of a violation as defined in section 10.00 of the penal law; or
(ii) been convicted of a non-criminal offense, as defined by a law of another state.
(2) It shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to make any inquiry in writing or otherwise about, or deny employment to any person or take adverse action against any employee based on an arrest or criminal accusation that was followed by an order or conviction described in subparagraph (1) of this paragraph.
(3) The provisions of this paragraph shall not apply to an applicant for employment or a current employee employed
(i) as a police officer or peace officer, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or
(ii) at a law enforcement agency as that term is used in article 23-A of the correction law.
(4) The provisions of this paragraph shall not apply where a mandatory forfeiture, disability or bar to employment is imposed by law and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.
(5) The provisions of paragraph (b) shall be enforceable against public agencies by a proceeding brought pursuant to article 78 of the civil practice law and rules, and the provisions of this subdivision shall be enforceable against other employers by the commission through the administrative procedure provided for in this chapter or as provided in chapter 5 of this title.
11-a. Arrest and conviction records preceding and during employment; employer inquiries and fair chance process.
(a) In addition to the restrictions in subdivisions 10 and 11 of this section, it shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to:
(1) Declare, print or circulate or cause to be declared, printed or circulated any solicitation, advertisement or publication, which expresses, directly or indirectly, any limitation, or specification in employment based on a person's arrest or criminal conviction;
(2) Because of any person's arrest or criminal conviction, represent that any employment or position is not available, when in fact it is available to such person; or
(3) Make any inquiry or statement related to the pending arrest or criminal accusation, or criminal conviction record of any person who is in the process of applying for a position with such employer or agent thereof until after such employer or agent thereof has extended a conditional offer of employment to the applicant. For purposes of this subdivision, with respect to an applicant for temporary employment at a temporary help firm as such term is defined by subdivision 5 of section 916 of article 31 of the labor law, an offer to be placed in the temporary help firm's general candidate pool shall constitute a conditional offer of employment. For purposes of this subdivision, "any inquiry" means any question communicated to an applicant in writing or otherwise, or any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant's criminal background information, and "any statement" means a statement communicated in writing or otherwise to the applicant for purposes of obtaining an applicant's criminal background information regarding: (i) an arrest record; (ii) a conviction record; or (iii) a criminal background check.
(b) After extending an applicant a conditional offer of employment, an employer, employment agency or agent thereof may inquire about the applicant's arrest or conviction record if before taking any adverse employment action based on such inquiry, the employer, employment agency or agent thereof:
(1) Provides a written copy of the inquiry to the applicant in a manner to be determined by the commission;
(2) Requests from the applicant information relating to the relevant fair chance factors;
(3) Performs an analysis as required by paragraphs (a) and (c) of subdivision 10 of this section;
(4) Provides a written copy of such analysis to the applicant in a manner to be determined by the commission, which shall include but not be limited to supporting documents that formed the basis for an adverse action based on such analysis and the employer's or employment agency's reasons for taking any adverse action against such applicant; and
(5) After giving the applicant the inquiry and analysis in writing, allows the applicant a reasonable time to respond, which shall be no less than five business days and during this time, holds the position open for the applicant.
(c) Before taking any adverse employment action against a current employee based on a criminal conviction, or pending arrest or criminal accusation, the employer, employment agency or agent thereof shall:
(1) Request from the employee information relating to the relevant fair chance factors;
(2) Perform an analysis as required by paragraphs (b) and (c) of subdivision 10 of this section;
(3) Provide a written copy of such analysis to the employee in a manner to be determined by the commission, which shall include but not be limited to supporting documents that formed the basis for an adverse action based on such analysis and the employer's or employment agency's reasons for taking any adverse action against such employee; and
(4) After giving the employee the inquiry and analysis in writing, allow the employee a reasonable time to respond before taking adverse action.
(d) Paragraph (c) of this subdivision shall not apply:
(1) If a public agency takes adverse action against an employee based upon a pending arrest or criminal accusation that preceded or arose during employment or a conviction that occurred during employment, where the employee is entitled to a disciplinary process as set forth in section 75 of the civil service law, or where the public agency follows a disciplinary process set forth in agency rules or as required by law; or
(2) If a mandatory forfeiture, disability or bar to employment is imposed by law and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.
(e) Nothing in this subdivision shall prevent an employer, employment agency or agent thereof from taking adverse action against any employee or denying employment to any applicant for reasons other than such employee or applicant's arrest or criminal conviction record.
(f) An applicant shall not be required to respond to any inquiry or statement that violates paragraph (a) of this subdivision and any refusal to respond to such inquiry or statement shall not disqualify an applicant from the prospective position.
(g) This subdivision shall not apply to any actions taken by an employer or agent thereof:
(1) With regard to an applicant for employment or a current employee employed as a police officer or peace officer, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or at a law enforcement agency as that term is used in article 23-A of the correction law, including but not limited to the police department, the fire department, the department of correction, the department of investigation, the department of probation, the division of child protection and the division of youth and family justice of the administration for children's services, the business integrity commission, and the district attorneys' offices; or
(2) With regard to an applicant for employment or a current employee employed in any position listed in the determinations of personnel published as a commissioner's calendar item and listed on the website of the department of citywide administrative services upon a determination by the commissioner of citywide administrative services that the position involves law enforcement, is susceptible to bribery or other corruption, or entails the provision of services to or safeguarding of persons who, because of age, disability, infirmity or other condition, are vulnerable to abuse. If the employer takes adverse action against any applicant or employee based on the person's arrest or criminal conviction record, it shall provide to the person a written copy, in a form and manner to be determined by the department, of an analysis considering the relevant fair chance factors and concluding that either (i) there is a direct relationship between criminal history or alleged wrongdoing and the employment sought or held by the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public; or
(3) Pursuant to any federal, state or local law requiring criminal background checks for employment purposes or barring employment based on criminal history. For purposes of this paragraph federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in section 3(a)(26) of the securities exchange act of 1934, as amended.
(h) The provisions of this subdivision shall be enforceable against public agencies by a proceeding brought pursuant to article 78 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 5 of this title.
11-b. Arrest record; credit application. For purposes of issuing credit, it shall be an unlawful discriminatory practice, unless specifically required or permitted by any other law, to:
(a) Deny or act adversely upon any person seeking credit by reason of an arrest or criminal accusation of such person when such denial or adverse action is in violation of subdivision 16 of section 296 of article 15 of the executive law;
(b) Make any inquiry in writing or otherwise, regarding any arrest or criminal accusation of a person seeking credit when such inquiry is in violation of subdivision 16 of section 296 of article 15 of the executive law; or
(c) Because of any arrest or criminal accusation of a person seeking credit, represent to such person that credit is not available, when in fact it is available to such person.
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 rentals 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 1 and 2 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 1 or 2 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 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 4 or 5 of this title and shall be among the factors considered in determining an employer's liability under subparagraph 3 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 4 or 5 of this title for such unlawful discriminatory practices.
14. Applicability; immigration 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 immigration or citizenship status, or to make any inquiry as to a person's immigration 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 not a citizen or national of the United States, 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, and when such law or regulation does not provide that state or local law may be more protective of a person who is not a citizen or national of the United States; provided, however, that this provision shall not prohibit inquiries or determinations based on immigration 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 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), it is an unlawful discriminatory practice for any person prohibited by the provisions of this section from discriminating on the basis of disability not to provide a 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. [Repealed.]
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 4 or 5 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, uniformed service or immigration 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 such person 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, uniformed service or immigration 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:
(a) Because of a person's unemployment, represent that any employment or position is not available when in fact it is available; or
(b) 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, shall be deemed to have the same employer.
c. Applicability of subdivision.
(1) This subdivision shall not apply to:
(a) Actions taken by the department of citywide administrative services in furtherance of its responsibility for city personnel matters pursuant to chapter 35 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 35 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 1 of this subdivision;
(c) Agency appointments to competitive positions from eligible lists pursuant to subsection 1 of section 61 of the 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 4 or 5 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 section 8-102, to the needs of an employee for the employee's 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) Employer lactation accommodation.
(i) Except as provided in subparagraph (iii) of this paragraph, employers shall provide the following to accommodate an employee needing to express breast milk: (1) a lactation room in reasonable proximity to such employee's work area; and (2) a refrigerator suitable for breast milk storage in reasonable proximity to such employee's work area.
(ii) If a room designated by an employer to serve as a lactation room is also used for another purpose, the sole function of the room shall be as a lactation room while an employee is using the room to express breast milk. When an employee is using the room to express milk, the employer shall provide notice to other employees that the room is given preference for use as a lactation room.
(iii) Should the provision of a lactation room as required by this paragraph pose an undue hardship on an employer, the employer shall engage in a cooperative dialogue, as required by subdivision 28 of this section.
(iv) The presence of a lactation room pursuant to this subdivision shall not affect an individual's right to breastfeed in public pursuant to article 7 of the civil rights law.
(c) Employer lactation room accommodation policy.
(i) An employer shall develop and implement a written policy regarding the provision of a lactation room and shall distribute such written policy to employees at the commencement of employment. An employer shall make such written policy readily available to employees by, at a minimum, conspicuously posting such policy at an employer’s place of business in an area accessible to employees and electronically on such employer’s intranet, if one exists. The policy shall include a statement that employees have a right to request a lactation room, and identify a process by which employees may request a lactation room. This process shall:
(1) Specify the means by which an employee may submit a request for a lactation room;
(2) Require that the employer respond to a request for a lactation room within a reasonable amount of time not to exceed five business days;
(3) Provide a procedure to follow when two or more individuals need to use the lactation room at the same time, including contact information for any follow up required;
(4) State that the employer shall provide 30 minutes of paid break time, and shall further permit an employee to use existing paid break time or meal time for time in excess of 30 minutes to express breast milk pursuant to section 206-c of the labor law; and
(5) State that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue, as required by subdivision 28 of this section.
(ii) The commission shall, in collaboration with the department of health and mental hygiene, develop a model lactation room accommodation policy that conforms to the requirements of this subdivision and a model lactation room request form. The commission shall make such model policy and request form available on its website.
(iii) The existence of a lactation room accommodation policy pursuant to this subdivision shall not affect an individual's right to breastfeed in public pursuant to article 7 of the civil rights law.
(d) 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 new employees at the commencement of employment. 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.
(e) This subdivision shall not be construed to affect any other provision of law relating to discrimination on the basis of gender, 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.
23. Additional provisions relating to employment; interns, freelancers, independent contractors, and domestic workers. The protections of this chapter relating to employees apply to interns, freelancers and independent contractors. The protections of this chapter relating to employees also apply to a person's employment of one or more domestic workers as defined in subdivision 16 of section 2 of the labor law, without regard to the number of other employees such person has in their employ, provided however that subdivisions (10), (11-a) and paragraphs (b), (c) and (d) of subdivision (22) shall not apply.
24. Employment; consumer credit history.
(a) Except as provided in this subdivision, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to request or to use for employment purposes the consumer credit history of an applicant for employment or employee, or otherwise discriminate against an applicant or employee with regard to hiring, compensation, or the terms, conditions or privileges of employment based on the consumer credit history of the applicant or employee.
(b) Paragraph (a) of this subdivision shall not apply to:
(1) An employer or agent thereof, that is required by state or federal law or regulations or by a self-regulatory organization as defined in section 3(a)(26) of the securities exchange act of 1934, as amended to use an individual's consumer credit history for employment purposes;
(2) Persons applying for positions as or employed:
(A) As police officers or peace officers, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or in a position with a law enforcement or investigative function at the department of investigation;
(B) In a position that is subject to background investigation by the department of investigation, provided, however, that the appointing agency may not use consumer credit history information for employment purposes unless the position is an appointed position in which a high degree of public trust, as defined by the commission in rules, has been reposed;
(C) In a position in which an employee is required to be bonded under city, state or federal law;
(D) In a position in which an employee is required to possess security clearance under federal law or the law of any state;
(E) In a non-clerical position having regular access to trade secrets, intelligence information or national security information;
(F) In a position:
(i) having signatory authority over third party funds or assets valued at $10,000 or more; or
(ii) that involves a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer; or
(G) In a position with regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer's or client's networks or databases.
(c) Paragraph (a) of this subdivision shall not be construed to affect the obligations of persons required by section 12-110 or by mayoral executive order relating to disclosures by city employees to the conflicts of interest board to report information regarding their creditors or debts, or the use of such information by government agencies for the purposes for which such information is collected.
(d) Nothing in this subdivision precludes an employer from requesting or receiving consumer credit history information pursuant to a lawful subpoena, court order or law enforcement investigation.
25. Employment; inquiries regarding salary history.
(a) For purposes of this subdivision, "to inquire" means to communicate any question or statement to an applicant, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant's salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant's salary history, but does not include informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range. For purposes of this subdivision, "salary history" includes the applicant's current or prior wage, benefits or other compensation. "Salary history" does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports.
(b) Except as otherwise provided in this subdivision, it is an unlawful discriminatory practice for an employer, employment agency, or employee or agent thereof:
1. To inquire about the salary history of an applicant for employment; or
2. To rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract.
(c) Notwithstanding paragraph (b) of this subdivision, an employer, employment agency, or employee or agent thereof may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant's resignation from their current employer.
(d) Notwithstanding subparagraph 2 of paragraph (b) of this subdivision, where an applicant voluntarily and without prompting discloses salary history to an employer, employment agency, or employee or agent thereof, such employer, employment agency, or employee or agent thereof may consider salary history in determining salary, benefits and other compensation for such applicant, and may verify such applicant's salary history.
(e) This subdivision shall not apply to:
(1) Any actions taken by an employer, employment agency, or employee or agent thereof pursuant to any federal, state or local law that specifically authorizes the disclosure or verification of salary history for employment purposes, or specifically requires knowledge of salary history to determine an employee's compensation;
(2) Applicants for internal transfer or promotion with their current employer;
(3) Any attempt by an employer, employment agency, or employee or agent thereof, to verify an applicant's disclosure of non-salary related information or conduct a background check, provided that if such verification or background check discloses the applicant's salary history, such disclosure shall not be relied upon for purposes of determining the salary, benefits or other compensation of such applicant during the hiring process, including the negotiation of a contract; or
(4) Public employee positions for which salary, benefits or other compensation are determined pursuant to procedures established by collective bargaining.
26. Applicability; uniformed service. Notwithstanding any other provision of this section and except as otherwise provided by law, it is not an unlawful discriminatory practice for any person to afford any other person a preference or privilege based on such other person's uniformed service, or 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 or make any inquiry indicating any such lawful preference or privilege.
27. Victims of domestic violence, sex offenses or stalking.
a. Employment. It shall be an unlawful discriminatory practice for an employer, or an agent thereof, because of any individual's actual or perceived status as a victim of domestic violence, or as a victim of sex offenses or stalking:
(1) To represent that any employment or position is not available when in fact it is available;
(2) To refuse to hire or employ or to bar or to discharge from employment; or
(3) To discriminate against an individual in compensation or other terms, conditions, or privileges of employment.
b. Requirement to make reasonable accommodation to the needs of victims of domestic violence, sex offenses or stalking. Except as provided in paragraph d, it is an unlawful discriminatory practice for any person prohibited by paragraph a from discriminating on the basis of actual or perceived status as a victim of domestic violence or a victim of sex offenses or stalking not to provide a 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.
c. Documentation of status. Any person required by paragraph b to make reasonable accommodation may require a person requesting reasonable accommodation pursuant to such paragraph to provide certification that the person is a victim of domestic violence, sex offenses or stalking. The person requesting reasonable accommodation pursuant to such paragraph 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 subdivision, 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.
d. 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.
e. 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, because of any individual's actual or perceived status as a victim of domestic violence, or as a victim of sex offenses or stalking:
(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, or to discriminate 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 because of an actual or perceived status of said individual as a victim of domestic violence, or as a victim of sex offenses or stalking; or
(2) To represent that such housing accommodation or an interest therein is not available when in fact it is available.
f. The provisions of paragraph e 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.
g. For the purposes of this subdivision, 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.
28. Reasonable accommodation; cooperative dialogue.
(a) Employment. It shall be an unlawful discriminatory practice for an employer, labor organization or employment agency or an employee or agent thereof to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation:
(1) For religious needs as provided in subdivision 3 of this section;
(2) Related to a disability as provided in subdivision 15 of this section;
(3) Related to pregnancy, childbirth or a related medical condition as provided in subdivision 22 of this section; or
(4) For such person's needs as a victim of domestic violence, sex offenses or stalking as provided in subdivision 27 of this section.
(b) Public accommodations. It shall be an unlawful discriminatory practice for any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require an accommodation related to disability as provided in subdivision 15 of this section.
(c) Housing accommodation. It shall be an unlawful discriminatory practice for an 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 agency or employee thereof to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require an accommodation related to disability as provided in subdivision 15 of this section.
(d) Upon reaching a final determination at the conclusion of a cooperative dialogue pursuant to paragraphs (a) and (c) of this subdivision, the covered entity shall provide any person requesting an accommodation who participated in the cooperative dialogue with a written final determination identifying any accommodation granted or denied.
(e) The determination that no reasonable accommodation would enable the person requesting an accommodation to satisfy the essential requisites of a job or enjoy the right or rights in question may only be made after the parties have engaged, or the covered entity has attempted to engage, in a cooperative dialogue.
(f) Rights and obligations set forth in this subdivision are supplemental to and independent of the rights and obligations provided by subdivisions 3, 15, 22 and 27. A covered entity's compliance with this subdivision is not a defense to a claim of not providing a reasonable accommodation under provisions of title 8 other than this subdivision.
29. Anti-sexual harassment rights and responsibilities; poster.
(a) Every employer must conspicuously display an anti-sexual harassment rights and responsibilities poster designed by the commission, in employee breakrooms or other common areas employees gather. Every employer at a minimum shall display such poster in English and in Spanish.
(b) The commission shall create a poster that sets forth in simple and understandable terms the following minimum requirements:
(1) An explanation of sexual harassment as a form of unlawful discrimination under local law;
(2) A statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
(3) A description of sexual harassment, using examples;
(4) The complaint process available through, and directions on how to contact, the commission;
(5) The complaint process available through, and directions on how to contact, the state division of human rights;
(6) The complaint process available through, and directions on how to contact, the United States equal employment opportunity commission; and
(7) The prohibition against retaliation, pursuant to subdivision 7 of section 8-107.
(c) The size and style of the poster shall be at least 8 1/2 by 14 inches with a minimum 12 point type. Such poster shall be made available in English and Spanish and any other language deemed appropriate by the commission, however, any such poster shall only contain one language.
(d) Any poster required pursuant to this section shall be made available on the commission's website for employers to download for legible color reproduction in English, Spanish and any other language deemed appropriate by the commission.
(e) The commission shall develop an information sheet on sexual harassment that employers shall distribute to individual employees at the time of hire. Such information sheet may be included in an employee handbook. Such information sheet shall contain, at a minimum, the same elements of paragraph (b) of this subdivision. The information sheet shall be made available in English and Spanish and any other language deemed appropriate by the commission.
30. Anti-sexual harassment training.
(a) Definitions. For purposes of this subdivision, the following terms have the following meanings:
Interactive training. The term "interactive training" means participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the commission. However, such "interactive training" is not required to be live or facilitated by an in-person instructor in order to satisfy the provisions of this subdivision.
(b) Training. Employers with 15 or more employees shall annually conduct an anti-sexual harassment interactive training for all employees, including supervisory and managerial employees, of such employer employed within the city of New York. Such training shall be required after 90 days of initial hire for employees who work more than 80 hours in a calendar year who perform work on a full-time or part-time basis. Such training shall include, but need not be limited to, the following:
(1) An explanation of sexual harassment as a form of unlawful discrimination under local law;
(2) A statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
(3) A description of what sexual harassment is, using examples;
(4) Any internal complaint process available to employees through their employer to address sexual harassment claims;
(5) The complaint process available through the commission, the division of human rights and the United States equal employment opportunity commission, including contact information;
(6) The prohibition of retaliation, pursuant to subdivision 7 of section 8-107, and examples thereof; and
(7) Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
(8) The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.
(c) Compliance.
(1) Employers shall keep a record of all trainings, including a signed employee acknowledgement. Such acknowledgment may be electronic.
(2) Employers shall maintain such records for at least three years and such records must be made available for commission inspection upon request.
(3) The commission shall develop an online interactive training module that may be used by an employer as an option to satisfy the requirements of paragraph (b) of this subdivision, provided that an employer shall inform all employees of any internal complaint process available to employees through their employer to address sexual harassment claims. Such training module shall be made publicly available at no cost on the commission's website. Such training module shall allow for the electronic provision of certification each time any such module is accessed and completed. The commission shall update such modules as needed.
(4) The training required by this subdivision is intended to establish a minimum threshold and shall not be construed to prohibit any private employer from providing more frequent or additional anti-sexual harassment training.
(d) For purposes of this subdivision the term "employer" shall not apply to (i) the United States government; (ii) the state of New York, including any office, department, independent agency, authority, institution, association, society or other body of the state including the legislature and the judiciary; or (iii) the city of New York or any local government, municipality or county or any entity governed by section 92 of the general municipal law or section 207 of the county law.
(e) For purposes of this subdivision the term "employee" shall apply to interns.
(f) An employee who has received anti-sexual harassment training at one employer within the required training cycle shall not be required to receive additional anti-sexual harassment training at another employer until the next cycle.
(g) An employer that is subject to training requirements in multiple jurisdictions may assert that it is compliant with this subdivision provided that each provision in subparagraph b of this subdivision is fulfilled in an anti-sexual harassment training that such employer makes available to its employees on an annual basis and shall be allowed to provide proof of compliance.
31. Employment; pre-employment drug testing policy.
(a) Prohibition. Except as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee's system as a condition of employment.
(b) Exceptions.
(1) The provisions of this subdivision shall not apply to persons applying to work:
(A) As police officers or peace officers, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or in a position with a law enforcement or investigative function at the department of investigation;
(B) In any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law;
(C) In any position requiring a commercial driver's license;
(D) In any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in paragraph 15 of section 488 of the social services law; or
(E) In any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by: (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.
(2) The provisions of this subdivision shall not apply to drug testing required pursuant to:
(A) Any regulation promulgated by the federal department of transportation that requires testing of a prospective employee in accordance with 49 CFR 40 or any rule promulgated by the departments of transportation of this state or city adopting such regulation for purposes of enforcing the requirements of that regulation with respect to intrastate commerce;
(B) Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
(C) Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
(D) Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
(c) Rules. The commission shall promulgate rules for the implementation of this subdivision.
32. Employment; minimum and maximum salary in job listings.
(a) It shall be an unlawful discriminatory practice for an employment agency, employer, or employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum annual salary or hourly wage for such position in such advertisement. In stating the minimum and maximum annual salary or hourly wage for a position, the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.
(b) This subdivision does not apply to:
(1) A job advertisement for temporary employment at a temporary help firm as such term is defined by subdivision 5 of section 916 of article 31 of the labor law; and
(2) Positions that cannot or will not be performed, at least in part, in the city of New York.
(c) No person shall have a cause of action pursuant to section 8-502 for an alleged violation of this subdivision, except that an employee may bring such an action against their current employer for an alleged violation of this subdivision in relation to an advertisement by their employer for a job, promotion or transfer opportunity with such employer.
(d) Notwithstanding the penalties outlined in section 8-126, an employment agency, employer, or employee or agent thereof shall be subject to a civil penalty of $0 for a first violation of this subdivision, or any rule promulgated thereunder, if such employment agency, employer, employee or agent thereof proves to the satisfaction of the commission, within 30 days of the service of a copy of the applicable complaint pursuant to section 8-109, that the violation of this subdivision has been cured. The submission of proof of a cure, if accepted by the commission as proof that the violation has been cured, shall be deemed an admission of liability for all purposes. The option of presenting proof that the violation has been cured shall be offered as part of any service of a copy of an applicable complaint pursuant to section 8-109 to an employment agency, employer, or employee or agent thereof for the violation of this subdivision, or any rule promulgated thereunder, for the first time. The commission shall permit such proof to be submitted electronically or in person. An employment agency, employer, or employee or agent thereunder may seek review with the commission of the determination that proof of a cure has not been submitted within 15 days of receiving written notice of such determination.
(Am. L.L. 2015/037, 5/6/2015, eff. 9/3/2015; Am. L.L. 2015/063, 6/29/2015, eff. 10/27/2015; Am. L.L. 2016/001, 1/5/2016, eff. 5/4/2016; Am. L.L. 2016/034, 3/28/2016, eff. 7/26/2016; Am. L.L. 2016/037, 3/28/2016, eff. 3/28/2016; Am. L.L. 2016/040, 4/6/2016, retro. eff. 10/25/2015 and eff. 4/6/2016; Am. L.L. 2017/067, 5/4/2017, eff. 10/31/2017; Am. L.L. 2017/119, 7/22/2017, eff. 11/19/2017; Am. L.L. 2018/059, 1/19/2018, eff. 10/16/2018; Am. L.L. 2018/063, 1/19/2018, eff. 10/16/2018; Am. L.L. 2018/095, 5/9/2018, eff. 9/6/2018; Am. L.L. 2018/096, 5/9/2018, eff. 4/1/2019; Am. L.L. 2018/185, 11/17/2018, eff. 3/17/2019; Am. L.L. 2018/186, 11/17/2018, eff. 3/17/2019; Am. L.L. 2019/020, 1/20/2019, eff. 5/20/2019; Am. L.L. 2019/091, 5/10/2019, eff. 5/10/2020; Am. L.L. 2019/129, 7/14/2019, eff. 11/11/2019; Am. L.L. 2019/172, 10/13/2019, eff. 1/11/2020; Am. L.L. 2020/058, 6/29/2020, eff. 8/28/2020; Am. L.L. 2020/115, 11/17/2020, eff. 5/16/2021; Am. L.L. 2020/119, 11/17/2020, eff. 2/15/2021; Am. L.L. 2021/004, 1/10/2021, eff. 7/29/2021; Am. L.L. 2021/088, 8/25/2021, eff. 3/13/2022; Am. L.L. 2022/032, 1/15/2022, eff. 11/1/2022; Am. L.L. 2022/059, 5/12/2022, eff. 11/1/2022; Am. L.L. 2023/061, 5/26/2023, eff. 11/22/2023; Am. L.L. 2024/024, 1/20/2024, eff. 1/1/2025; Am. L.L. 2024/109, 11/9/2024, eff. 5/8/2025)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1989/052, L.L. 1991/039, L.L. 1998/027, L.L. 2001/001, L.L. 2005/085, L.L. 2008/020, L.L. 2013/078, L.L. 2015/037, L.L. 2015/063, and L.L. 2021/004.
