On December 19, 2025, Governor Kathy Hochul signed Senate Bill S8338 into law, amending the New York State Human Rights Law. This legislation explicitly codifies the “disparate impact” standard for establishing employment discrimination, ensuring that policies with a discriminatory effect are unlawful even in the absence of discriminatory intent.
The law took effect immediately upon signing.
Background: Understanding Disparate Impact
Historically, discrimination claims have fallen into two categories: “disparate treatment” (intentional discrimination) and “disparate impact” (unintentional discrimination caused by neutral policies).
Under the disparate impact theory, an employment practice that appears neutral on its face, such as a specific physical ability test or a degree requirement, can be considered unlawful if it disproportionately affects a protected group. This standard was originally established in federal case law (Griggs v. Duke Power Co.), but recent legislative shifts have prompted New York to formally embed this protection into state statute.
Key Provisions of the New Law
Senate Bill S8338 clarifies the burden of proof in discrimination cases involving disparate impact. The new subdivision added to the Executive Law outlines the following framework:
- Establishing a Claim. A plaintiff can establish an unlawful discriminatory practice by proving that an employment practice has a discriminatory effect (actually or predictably resulting in a disparate impact) on a protected class, even if the employer had no intent to discriminate.
- Employer Defense. Once a discriminatory effect is shown, the burden shifts to the employer to prove that the challenged practice is “job-related for the position in question and consistent with business necessity.”
- Alternative Practices. Even if the employer proves business necessity, the plaintiff can still prevail by demonstrating that the business necessity could be served by an alternative practice that has a less discriminatory effect.
Legislative Intent
The sponsor memo for the bill indicates that this legislation was drafted in response to the shifting federal landscape regarding civil rights. By codifying these standards into state law, New York ensures that disparate impact remains a viable method for challenging discriminatory practices within the state, regardless of potential changes to federal policy or interpretation.
Next Steps for Employers
With this law effective immediately, employers should take proactive measures to examine their employment practices for unintended bias.
- Audit Employment Assessments: Review all hiring tests, physical requirements, and automated screening tools to determine if they disproportionately screen out members of a protected class.
- Verify Business Necessity: Ensure that any mandatory job requirement (such as a specific college degree or certification) is strictly related to the job duties and essential for business operations.
- Review Job Descriptions: Update job descriptions to reflect only the skills and qualifications truly necessary for the role, removing outdated or arbitrary barriers to entry.
- Consider Alternatives: If a policy is found to have a disparate impact, explore whether there are alternative methods to achieve the same business goal with less adverse effect on protected groups.
- Consult Legal Counsel: Given the legal complexities of statistical disparate impact, work with legal counsel to validate that high-stakes employment practices are defensible.
