On Dec. 19, 2025, Governor Kathy Hochul signed Senate Bill S8338 into law amending the New York State Human Rights Law (NYSHRL) to expressly recognize “disparate impact” claims in employment discrimination claims.
While New York courts had already recognized disparate impact liability, this amendment formally codifies the standard and aligns the NYSHRL with federal law (Title VII) and the New York City Human Rights Law.
What This Means
The amendment imposes liability where a facially neutral policy or practice has discriminatory effect on a protected group—regardless of any discriminatory intent. In other words, employers may face liability even absent a discriminatory motive if a policy disproportionately impacts a protected class. The law applies to conduct occurring on or after Dec. 19, 2025.
Legal Framework
Under the new subdivision of Executive Law §296:
Employee’s Burden: a plaintiff must show that a specific policy or practice has a disparate impact on a protected group, either in fact or predictably.
Employer’s Burden: if a disparate impact is shown, the employer must establish a “legally sufficient justification” by demonstrating that:
the policy is job-related and consistent with a business necessity; and
the business necessity cannot be achieved through a less discriminatory alternative. The justification must be supported by evidence—not speculation.
Employee’s Rebuttal: even if the employer meets this burden, an employee may still prevail by showing that a less discriminatory alternative exists.
Practical Takeaways for Employers
Employers should exercise caution in their increasing use of artificial intelligence (AI) in personnel or business decisions, as algorithmic screening, hiring, firing, promotion, discipline or compensation systems may unintentionally produce statistically disparate outcomes that give rise to disparate impact liability if not validated as job-related, consistent with business necessity and assessed for less discriminatory alternatives.
Policies that appear neutral on their face can still create liability if they disproportionately affect protected groups.
Employers should ensure that key policies (e.g., hiring criteria, background checks, compensation structures, scheduling practices) are tied to legitimate business needs and supported by evidence.
Where possible, employers should evaluate whether less discriminatory alternatives are available.
Documentation supporting the business necessity of policies will be critical in defending potential discrimination claims.
Next Steps
Given the expansion and codification of disparate impact liability, employers should consider proactively reviewing their employment practices, policies and job classifications to identify potential risk areas and ensure compliance with evolving state and local standards.
New York has long protected its residents from discrimination in the job hiring process with the New York State Human Rights Law (NYSHRL), which was originally passed in 1945. New York City also has its own Human Rights Law (NYCHRL) that further covers discrimination in job hiring.
On Nov. 17, 2023, Gov. Kathy Hochul signed Senate Bill S.3255, which amends Section 297 of the New York Executive Law by extending the statute of limitations for filing complaints of unlawful discrimination with the Division of Human Rights (DHR) to three years.
As reported in our previous blog post, on May 26, 2023, New York City Mayor Adams signed a bill into law prohibiting height and weight discrimination within employment, housing and public accommodations under the New York City Human Rights Law. That law will go into effect tomorrow, November 22, 2023. Although these prohibitions are accompanied by a few exemptions, employers should note that such exemptions are narrow and dependent on allowances contained within either federal, state, or local laws or regulations, or as expressly permitted by the Commission on Human Rights.
May 30, 2023 – UPDATE: On May 26, NYC Mayor Adams signed this bill into law, and it will go into effect 180 days later, on Nov. 22, 2023. Please feel free to reach out for steps your organization can take now to begin preparing.
On May 11, 2023, the New York City Council passed a bill which would prohibit height and weight discrimination within employment, housing and public accommodations under the New York City Human Rights Law (NYCHRL). As of this writing, the bill has been sent to Mayor Eric Adams for signature, who has 30 days to either sign the bill, take no action or veto it. If the mayor signs or takes no action, the bill becomes law and would take effect 180 days thereafter. In the event of a veto, the bill is sent back to the Council, which can override the veto with a two-thirds vote.
Employers are well aware of the risks a disgruntled employee may pose during their employment and even after their employment has ended. Sometimes, however, employers do not discover an employee’s unscrupulous behavior until after an employee has sued their employer for violation of one or more employee protection statutes, i.e., the New York Labor Law (NYLL), Fair Labor Standards Act (FLSA) or New York State Human Rights Law (NYSHRL). These statutes, however, also contain prohibitions against retaliation, leading many employers to question whether they could or should countersue an employee for tortious conduct and potentially risk a claim for retaliation. The Second Circuit in Kim v. Lee, 2023 WL 2317248, 22-61 (2d Cir. March 2, 2023), shed some light on this topic and held that an employer’s counterclaim is retaliatory when it is baseless or frivolous. The Court did not, however, decide whether non-frivolous counterclaims might support a valid retaliation claim.
On July 19, 2022, Gov. Kathy Hochul announced the launch of a statewide hotline for employees who believe they have been sexually harassed in the workplace. This announcement follows several pieces of legislation1 passed in March 2022, in which sexual harassment protections for employees were expanded. As part of the legislation, the New York State Division of Human Rights was directed to establish a toll-free, confidential hotline for complainants of workplace sexual harassment. Employees can call the hotline and receive advice on their legal rights as applied to their specific circumstances from attorneys, who staff the hotline pro bono. As of July 20, 2022, the hotline is operational from 9 a.m. to 5 p.m., and can be reached at 1-800-HARASS-3 (1-800-427-2773).
On June 24, 2022, in Dobbs v. Jackson Women’s Health Org., 2022 WL 2276808 (June 24, 2022), the U.S. Supreme Court overruled Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) and held that (i) the U.S. Constitution does not confer a right to abortion and (ii) the authority to regulate abortion is held by the states. The statute at issue in Dobbs was Mississippi’s Gestational Age Act, which banned abortion after 15 weeks except in a medical emergency or in the case of severe fetal abnormality. Employers across the nation must now determine how to evaluate and respond to the far-reaching implications of this decision.
On May 12, 2022, Mayor Adams signed into law the NYC Council Amendment to the recently enacted Salary Transparency Law. In addition to postponing the law’s effective date to Nov. 1, 2022, this amendment also clarifies three other aspects of the law:
On Jan. 15, 2022, the New York City council amended the City Human Rights Law to encourage equity and transparency in pay.1 This amendment is part of larger national trend towards greater pay transparency. Several states have adopted similar laws, and the New York State legislature has introduced pay transparency legislation which is currently under consideration. On March 22, 2022, the City’s Commission on Human Rights issued guidance for employers providing some much-needed clarity in advance of the effective date. This blog post will outline the requirements of the new law, informed by that guidance, and it will provide recommendations for what employers can do now to get ready for this new compliance obligation.
The Fair Chance Act (FCA), which was added to the New York City Human Rights Law (NYCHRL) on Oct. 27, 2015, provides “fair chance” protections to workers with criminal convictions and limits when and to what extent employers can consider an individual’s criminal history in making employment decisions. On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) issued new guidance1 interpreting key amendments to the FCA that go into effect on July 29, 2021.
Earlier this month, the federal court for the Western District of New York issued a decision in Charter Communications, Inc. v. Derfert, No. 20-cv-915, 2021 WL 37726 (W.D.N.Y. Jan. 4, 2021) holding that an employment arbitration agreement did not preclude a hearing before the New York State Division of Human Rights (the Division) on an employee’s discrimination claim.
