New York Bills Target Disparate Impact and Retaliation Under NYS Human Rights Law, by Keith Gutstein, Esq. and Megan Beloff, Esq.,10-15-2025

Legislation designed to enhance protections under the New York State Human Rights Law (NYSHRL) has advanced through the Legislature.

Outlined below are two bills that have passed both the Assembly and Senate and are now pending action by the Governor:

Snapshot Overview

1. S8338 / A8699 – This legislation clarifies “the standard for when a practice has a discriminatory effect” (i.e. codifies a disparate impact standard under the NYSHRL).
2. S3398 / A4898 – The “Reasonable Accommodation Anti‑Retaliation Act,” as its name implies prohibits retaliation against persons who request a reasonable accommodation under the NYSHRL.

These proposals would both amend Section 296 of the Executive Law.

Detailed Provisions

S8338 / A8699 — Disparate Impact Standard

Disparate impact analysis, established in Griggs v. Duke Power Co. (1971) and codified in Title VII, allows a plaintiff to argue that a practice or conduct is discriminatory, regardless of intent, if it has a discriminatory effect. In April 2025, the Trump administration issued an Executive Order aiming to eliminate the use of disparate impact analysis, labeling it unconstitutional. In response, proposed New York legislation seeks to preserve disparate impact protections under state law.

• Purpose / Intent: Under this bill, complainants could bring a case arguing that a challenged practice had or predictably would have a disparate impact on a protected class under section 296 of the Human
  Rights Law. If the complainant successfully demonstrates that disparate impact, consistent with federal law, an employer would have the opportunity to argue that the challenged practice was job related and consistent with business necessity.
• Key change: Adds a new subdivision 5‑a to Section 296 of the Executive Law. Under this subdivision, for any case alleging employment discrimination under the article, an unlawful discriminatory practice may be established by a practice’s discriminatory effect, even if such practice was not motivated by discriminatory intent.
• What constitutes “discriminatory effect”: According to the statute, a practice has a discriminatory effect “where it actually or predictably” results in a disparate impact on a group of persons, because of their membership in a protected class.
• Limitations / Defenses: The proposal retains room for the employer to defend such practices if there is a legally sufficient justification including, but not limited to, if the challenged practice is job related for the position in question and consistent with business necessity. 

S3398 / A4898 — Reasonable Accommodation Anti‑Retaliation Act

• Purpose / Intent: To explicitly prohibit retaliation against individuals who request reasonable accommodation under the NYSHRL. The bill’s sponsors state that “this protection is not explicitly stated” in the state’s Human Rights Law despite being an important element of both federal and New York City anti-discrimination laws.”
• Key change: Amend subdivision 7 of Section 296 of Executive Law to add “requested a reasonable accommodation under this article” as one of the bases on which retaliation or discrimination is unlawful.
• What qualifies:
  • The request must be for a “reasonable accommodation” under the NYSHRL (which is already a protected concept under certain subdivisions of §296) – e.g. related to disability, religion, etc.
  • The bill does not appear to require that the accommodation has been granted or even denied, only that it has been requested. It appears retaliation for the request itself would be actionable.

Considerations for Employers

 It has yet to be seen if the Governor will sign off on these bills, but employers may want to consider the following:

• Review existing policies, practices and standard procedures to identify potential disparate impact risk, train HR and management about the legal changes, and update accommodation request procedures.
• Seek legal counsel to assess whether internal complaint procedures are sufficient, whether there has been any past retaliation risk, and prepare to adjust compliance documentation / recordkeeping.
• Consider interim audits of employment practices (hiring, promotions, testing, discipline, etc.) for adverse impacts on protected classes.
• Keep track of any legislative updates

Authors: Keith J. Gutstein, Chair of KD’s Labor and Employment Law Practice Group and Co-Managing Partner of the Long Island Office and Associate Megan Beloff