STATE OF NEW YORK ________________________________________________________________________ 7170--A 2023-2024 Regular Sessions IN ASSEMBLY May 11, 2023 ___________ Introduced by M. of A. L. ROSENTHAL -- read once and referred to the Committee on Governmental Operations -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the executive law, in relation to prohibiting discrimi- nation on the basis of a person's height or weight in opportunities of employment, housing, and access to public accommodations The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs (a), (b), (c), (d) and (h) of subdivision 1 of 2 section 296 of the executive law, as separately amended by chapters 202 3 and 748 of the laws of 2022, are amended to read as follows: 4 (a) For an employer or licensing agency, because of an individual's 5 age, race, creed, color, national origin, citizenship or immigration 6 status, sexual orientation, gender identity or expression, military 7 status, sex, height, weight, disability, predisposing genetic character- 8 istics, familial status, marital status, or status as a victim of domes- 9 tic violence, to refuse to hire or employ or to bar or to discharge from 10 employment such individual or to discriminate against such individual in 11 compensation or in terms, conditions or privileges of employment. 12 (b) For an employment agency to discriminate against any individual 13 because of age, race, creed, color, national origin, citizenship or 14 immigration status, sexual orientation, gender identity or expression, 15 military status, sex, height, weight, disability, predisposing genetic 16 characteristics, familial status, marital status, or status as a victim 17 of domestic violence, in receiving, classifying, disposing or otherwise 18 acting upon applications for its services or in referring an applicant 19 or applicants to an employer or employers. 20 (c) For a labor organization, because of the age, race, creed, color, 21 national origin, citizenship or immigration status, sexual orientation, 22 gender identity or expression, military status, sex, height, weight, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06818-03-3
A. 7170--A 2 1 disability, predisposing genetic characteristics, familial status, mari- 2 tal status, or status as a victim of domestic violence, of any individ- 3 ual, to exclude or to expel from its membership such individual or to 4 discriminate in any way against any of its members or against any 5 employer or any individual employed by an employer. 6 (d) For any employer or employment agency to print or circulate or 7 cause to be printed or circulated any statement, advertisement or publi- 8 cation, or to use any form of application for employment or to make any 9 inquiry in connection with prospective employment, which expresses 10 directly or indirectly, any limitation, specification or discrimination 11 as to age, race, creed, color, national origin, citizenship or immi- 12 gration status, sexual orientation, gender identity or expression, mili- 13 tary status, sex, height, weight, disability, predisposing genetic char- 14 acteristics, familial status, marital status, or status as a victim of 15 domestic violence, or any intent to make any such limitation, specifica- 16 tion or discrimination, unless based upon a bona fide occupational qual- 17 ification; provided, however, that neither this paragraph nor any 18 provision of this chapter or other law shall be construed to prohibit 19 the department of civil service or the department of personnel of any 20 city containing more than one county from requesting information from 21 applicants for civil service examinations concerning any of the afore- 22 mentioned characteristics, other than sexual orientation, for the 23 purpose of conducting studies to identify and resolve possible problems 24 in recruitment and testing of members of minority groups to ensure the 25 fairest possible and equal opportunities for employment in the civil 26 service for all persons, regardless of age, race, creed, color, national 27 origin, citizenship or immigration status, sexual orientation or gender 28 identity or expression, military status, sex, height, weight, disabili- 29 ty, predisposing genetic characteristics, familial status, or marital 30 status. 31 (h) (1) For an employer, licensing agency, employment agency or labor 32 organization to subject any individual to harassment because of an indi- 33 vidual's age, race, creed, color, national origin, citizenship or immi- 34 gration status, sexual orientation, gender identity or expression, mili- 35 tary status, sex, height, weight, disability, predisposing genetic 36 characteristics, familial status, marital status, status as a victim of 37 domestic violence, or because the individual has opposed any practices 38 forbidden under this article or because the individual has filed a 39 complaint, testified or assisted in any proceeding under this article, 40 regardless of whether such harassment would be considered severe or 41 pervasive under precedent applied to harassment claims. Such harassment 42 is an unlawful discriminatory practice when it subjects an individual to 43 inferior terms, conditions or privileges of employment because of the 44 individual's membership in one or more of these protected categories. 45 The fact that such individual did not make a complaint about the harass- 46 ment to such employer, licensing agency, employment agency or labor 47 organization shall not be determinative of whether such employer, 48 licensing agency, employment agency or labor organization shall be 49 liable. Nothing in this section shall imply that an employee must demon- 50 strate the existence of an individual to whom the employee's treatment 51 must be compared. It shall be an affirmative defense to liability under 52 this subdivision that the harassing conduct does not rise above the 53 level of what a reasonable victim of discrimination with the same 54 protected characteristic or characteristics would consider petty slights 55 or trivial inconveniences.
A. 7170--A 3 1 (2) The provisions of this subdivision relating to height and weight 2 shall not apply to an action by an employer, licensing agency, employ- 3 ment agency, or labor organization based on a person's height or weight 4 when such action is required or permitted by federal, state, or local 5 law or regulation. Nothing in this subdivision shall be construed to 6 prevent alternative actions reasonably taken by an employer, licensing 7 agency, employment agency, or labor organization to allow persons who do 8 not meet occupational height or weight criteria to perform the essential 9 requisites and/or normal operations of a job, including offering incen- 10 tives that support weight management as part of a voluntary wellness 11 program. In instances where an employer, licensing agency, employment 12 agency, or labor organization's action is not required by law or regu- 13 lation or permitted by law or regulation as described in this paragraph, 14 it shall be an affirmative defense that an action was taken because 15 there were no available alternative actions the entity could have taken 16 that could have reasonably allowed the person to perform the essential 17 requisites and/or normal operations of the job. 18 § 2. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296 of 19 the executive law, as separately amended by chapters 202 and 748 of the 20 laws of 2022, are amended and a new paragraph (e) is added to read as 21 follows: 22 (b) To deny to or withhold from any person because of race, creed, 23 color, national origin, citizenship or immigration status, sexual orien- 24 tation, gender identity or expression, military status, sex, height, 25 weight, age, disability, familial status, marital status, or status as a 26 victim of domestic violence, the right to be admitted to or participate 27 in a guidance program, an apprenticeship training program, on-the-job 28 training program, executive training program, or other occupational 29 training or retraining program; 30 (c) To discriminate against any person in his or her pursuit of such 31 programs or to discriminate against such a person in the terms, condi- 32 tions or privileges of such programs because of race, creed, color, 33 national origin, citizenship or immigration status, sexual orientation, 34 gender identity or expression, military status, sex, height, weight, 35 age, disability, familial status, marital status, or status as a victim 36 of domestic violence; 37 (d) To print or circulate or cause to be printed or circulated any 38 statement, advertisement or publication, or to use any form of applica- 39 tion for such programs or to make any inquiry in connection with such 40 program which expresses, directly or indirectly, any limitation, spec- 41 ification or discrimination as to race, creed, color, national origin, 42 citizenship or immigration status, sexual orientation, gender identity 43 or expression, military status, sex, height, weight, age, disability, 44 familial status, marital status, or status as a victim of domestic 45 violence, or any intention to make any such limitation, specification or 46 discrimination, unless based on a bona fide occupational qualification. 47 (e) The provisions of this subdivision relating to height and weight 48 shall not apply to an action by an employer, labor organization, employ- 49 ment agency or any joint labor-management committee controlling appren- 50 tice training programs based on a person's height or weight when such 51 action is required or permitted by federal, state, or local law or regu- 52 lation. Nothing in this subdivision shall be construed to prevent alter- 53 native actions reasonably taken by an employer, labor organization, 54 employment agency or any joint labor-management committee controlling 55 apprentice training programs to allow persons who do not meet program- 56 matic height or weight criteria to perform the essential requisites
A. 7170--A 4 1 and/or normal operations of a guidance program, an apprenticeship train- 2 ing program, on-the-job training program, executive training 3 program, or other occupational training or retraining program, including 4 offering incentives that support weight management as part of a volun- 5 tary wellness program. In instances where an employer, labor organiza- 6 tion, employment agency or any joint labor-management committee control- 7 ling apprentice training programs' action is not required by law or 8 regulation or permitted by law or regulation as described in this para- 9 graph, it shall be an affirmative defense that an action was taken 10 because there were no available alternative actions the entity could 11 have taken that could have reasonably allowed the person to perform the 12 essential requisites and/or normal operations of the guidance program, 13 apprenticeship training program, on-the-job training program, executive 14 training program, or other occupational training or retraining program. 15 § 3. Paragraphs (a) and (b) of subdivision 2 of section 296 of the 16 executive law, paragraph (a) as separately amended by chapters 202 and 17 748 of the laws of 2022 and paragraph (b) as amended by chapter 166 of 18 the laws of 2000, are amended and a new paragraph (f) is added to read 19 as follows: 20 (a) It shall be an unlawful discriminatory practice for any person, 21 being the owner, lessee, proprietor, manager, superintendent, agent or 22 employee of any place of public accommodation, resort or amusement, 23 because of the race, creed, color, national origin, citizenship or immi- 24 gration status, sexual orientation, gender identity or expression, mili- 25 tary status, sex, height, weight, disability, marital status, or status 26 as a victim of domestic violence, of any person, directly or indirectly, 27 to refuse, withhold from or deny to such person any of the accommo- 28 dations, advantages, facilities or privileges thereof, including the 29 extension of credit, or, directly or indirectly, to publish, circulate, 30 issue, display, post or mail any written or printed communication, 31 notice or advertisement, to the effect that any of the accommodations, 32 advantages, facilities and privileges of any such place shall be 33 refused, withheld from or denied to any person on account of race, 34 creed, color, national origin, citizenship or immigration status, sexual 35 orientation, gender identity or expression, military status, sex, 36 height, weight, disability or marital status, or that the patronage or 37 custom thereat of any person of or purporting to be of any particular 38 race, creed, color, national origin, citizenship or immigration status, 39 sexual orientation, gender identity or expression, military status, sex 40 or marital status, or having a disability is unwelcome, objectionable or 41 not acceptable, desired or solicited. 42 (b) Nothing in this subdivision shall be construed to prevent the 43 barring of any person, because of the sex of such person, from places of 44 public accommodation, resort or amusement if the division grants an 45 exemption based on bona fide considerations of public policy; nor shall 46 this subdivision apply to the rental of rooms in a housing accommodation 47 which restricts such rental to individuals of one sex. Nothing in this 48 subdivision shall be construed to prevent the barring of any person, 49 because of height or weight of such person, from places of amusement for 50 purposes of compliance with any amusement industry safety standards. 51 (f) The provisions of this subdivision relating to height and weight 52 shall not apply to an action by any person, being the owner, lessee, 53 proprietor, manager, superintendent, agent or employee of any place of 54 public accommodation, resort or amusement, based on a person's height or 55 weight when such action is required or permitted by federal, state, or 56 local law or regulation. Nothing in this subdivision shall be construed
A. 7170--A 5 1 to prevent alternative actions reasonably taken by any person, being the 2 owner, lessee, proprietor, manager, superintendent, agent or employee of 3 any place of public accommodation, resort or amusement, to allow 4 persons who do not meet height or weight criteria necessary for the 5 normal operations of a particular place or provider of accommodation, or 6 a category of such places or providers, to use or enjoy the accommo- 7 dations, advantages, services, facilities, or privileges of the place or 8 provider of public accommodation. In instances where any person, being 9 the owner, lessee, proprietor, manager, superintendent, agent or employ- 10 ee of any place of public accommodation, resort or amusement's, action 11 is not required by law or regulation or permitted by law or regulation 12 as described in this paragraph, it shall be an affirmative defense that 13 an action was taken because there were no available alternative actions 14 the entity could have taken that could have reasonably allowed the 15 person to use or enjoy the accommodations, advantages, services, facili- 16 ties, or privileges of the place or provider of public accommodation. 17 § 4. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section 18 296 of the executive law, as separately amended by chapters 202 and 748 19 of the laws of 2022, are amended to read as follows: 20 (a) To refuse to sell, rent or lease or otherwise to deny to or with- 21 hold from any person or group of persons such housing accommodations 22 because of the race, creed, color, disability, national origin, citizen- 23 ship or immigration status, sexual orientation, gender identity or 24 expression, military status, age, sex, height, weight, marital status, 25 status as a victim of domestic violence, lawful source of income or 26 familial status of such person or persons, or to represent that any 27 housing accommodation or land is not available for inspection, sale, 28 rental or lease when in fact it is so available. 29 (b) To discriminate against any person because of his or her race, 30 creed, color, disability, national origin, citizenship or immigration 31 status, sexual orientation, gender identity or expression, military 32 status, age, sex, height, weight, marital status, status as a victim of 33 domestic violence, lawful source of income or familial status in the 34 terms, conditions or privileges of any publicly-assisted housing accom- 35 modations or in the furnishing of facilities or services in connection 36 therewith. 37 (c) To cause to be made any written or oral inquiry or record concern- 38 ing the race, creed, color, disability, national origin, citizenship or 39 immigration status, sexual orientation, gender identity or expression, 40 membership in the reserve armed forces of the United States or in the 41 organized militia of the state, age, sex, height, weight, marital 42 status, status as a victim of domestic violence, lawful source of income 43 or familial status of a person seeking to rent or lease any publicly-as- 44 sisted housing accommodation; provided, however, that nothing in this 45 subdivision shall prohibit a member of the reserve armed forces of the 46 United States or in the organized militia of the state from voluntarily 47 disclosing such membership. 48 (c-1) To print or circulate or cause to be printed or circulated any 49 statement, advertisement or publication, or to use any form of applica- 50 tion for the purchase, rental or lease of such housing accommodation or 51 to make any record or inquiry in connection with the prospective 52 purchase, rental or lease of such a housing accommodation which 53 expresses, directly or indirectly, any limitation, specification or 54 discrimination as to race, creed, color, national origin, citizenship or 55 immigration status, sexual orientation, gender identity or expression, 56 military status, sex, height, weight, age, disability, marital status,
A. 7170--A 6 1 status as a victim of domestic violence, lawful source of income or 2 familial status, or any intent to make any such limitation, specifica- 3 tion or discrimination. 4 § 5. Subdivisions 3-b, 4 and 13 of section 296 of the executive law, 5 as separately amended by chapters 202 and 748 of the laws of 2022, are 6 amended to read as follows: 7 3-b. It shall be an unlawful discriminatory practice for any real 8 estate broker, real estate salesperson or employee or agent thereof or 9 any other individual, corporation, partnership or organization for the 10 purpose of inducing a real estate transaction from which any such person 11 or any of its stockholders or members may benefit financially, to repre- 12 sent that a change has occurred or will or may occur in the composition 13 with respect to race, creed, color, national origin, citizenship or 14 immigration status, sexual orientation, gender identity or expression, 15 military status, sex, height, weight, disability, marital status, status 16 as a victim of domestic violence, or familial status of the owners or 17 occupants in the block, neighborhood or area in which the real property 18 is located, and to represent, directly or indirectly, that this change 19 will or may result in undesirable consequences in the block, neighbor- 20 hood or area in which the real property is located, including but not 21 limited to the lowering of property values, an increase in criminal or 22 anti-social behavior, or a decline in the quality of schools or other 23 facilities. 24 4. (a) It shall be an unlawful discriminatory practice for an educa- 25 tional institution to deny the use of its facilities to any person 26 otherwise qualified, or to permit the harassment of any student or 27 applicant, by reason of his race, color, religion, disability, national 28 origin, citizenship or immigration status, sexual orientation, gender 29 identity or expression, military status, sex, height, weight, age, mari- 30 tal status, or status as a victim of domestic violence, except that any 31 such institution which establishes or maintains a policy of educating 32 persons of one sex exclusively may admit students of only one sex. 33 (b) The provisions of this subdivision relating to height and weight 34 shall not apply to an action by an educational institution based on a 35 person's height or weight when such action is required or permitted by 36 federal, state, or local law or regulation. Nothing in this subdivision 37 shall be construed to prevent alternative actions reasonably taken by an 38 educational institution to allow persons who do not meet height or 39 weight criteria to participate in educational institution programs, such 40 as athletic programs or other extracurricular programs, including offer- 41 ing incentives that support weight management as part of a voluntary 42 wellness program. In instances where an educational facility's action is 43 not required by law or regulation or permitted by law or regulation as 44 described in this paragraph, it shall be an affirmative defense that an 45 action was taken because there were no available alternative actions the 46 entity could have taken that could have reasonably allowed the person to 47 participate in an educational institution's program. 48 13. It shall be an unlawful discriminatory practice (i) for any person 49 to boycott or blacklist, or to refuse to buy from, sell to or trade 50 with, or otherwise discriminate against any person, because of the race, 51 creed, color, national origin, citizenship or immigration status, sexual 52 orientation, gender identity or expression, military status, sex, 53 height, weight, status as a victim of domestic violence, disability, or 54 familial status, or of such person, or of such person's partners, 55 members, stockholders, directors, officers, managers, superintendents, 56 agents, employees, business associates, suppliers or customers, or (ii)
A. 7170--A 7 1 for any person wilfully to do any act or refrain from doing any act 2 which enables any such person to take such action. This subdivision 3 shall not apply to: 4 (a) Boycotts connected with labor disputes; or 5 (b) Boycotts to protest unlawful discriminatory practices. 6 § 6. Paragraphs (a), (b), (c) and (d) of subdivision 5 of section 296 7 of the executive law, as separately amended by chapters 202 and 748 of 8 the laws of 2022, are amended to read as follows: 9 (a) It shall be an unlawful discriminatory practice for the owner, 10 lessee, sub-lessee, assignee, or managing agent of, or other person 11 having the right to sell, rent or lease a housing accommodation, 12 constructed or to be constructed, or any agent or employee thereof: 13 (1) To refuse to sell, rent, lease or otherwise to deny to or withhold 14 from any person or group of persons such a housing accommodation because 15 of the race, creed, color, national origin, citizenship or immigration 16 status, sexual orientation, gender identity or expression, military 17 status, sex, height, weight, age, disability, marital status, status as 18 a victim of domestic violence, lawful source of income or familial 19 status of such person or persons, or to represent that any housing 20 accommodation or land is not available for inspection, sale, rental or 21 lease when in fact it is so available. 22 (2) To discriminate against any person because of race, creed, color, 23 national origin, citizenship or immigration status, sexual orientation, 24 gender identity or expression, military status, sex, height, weight, 25 age, disability, marital status, status as a victim of domestic 26 violence, lawful source of income or familial status in the terms, 27 conditions or privileges of the sale, rental or lease of any such hous- 28 ing accommodation or in the furnishing of facilities or services in 29 connection therewith. 30 (3) To print or circulate or cause to be printed or circulated any 31 statement, advertisement or publication, or to use any form of applica- 32 tion for the purchase, rental or lease of such housing accommodation or 33 to make any record or inquiry in connection with the prospective 34 purchase, rental or lease of such a housing accommodation which 35 expresses, directly or indirectly, any limitation, specification or 36 discrimination as to race, creed, color, national origin, citizenship or 37 immigration status, sexual orientation, gender identity or expression, 38 military status, sex, height, weight, age, disability, marital status, 39 status as a victim of domestic violence, lawful source of income or 40 familial status, or any intent to make any such limitation, specifica- 41 tion or discrimination. 42 (4) (i) The provisions of subparagraphs one and two of this paragraph 43 shall not apply (1) to the rental of a housing accommodation in a build- 44 ing which contains housing accommodations for not more than two families 45 living independently of each other, if the owner resides in one of such 46 housing accommodations, (2) to the restriction of the rental of all 47 rooms in a housing accommodation to individuals of the same sex or (3) 48 to the rental of a room or rooms in a housing accommodation, if such 49 rental is by the occupant of the housing accommodation or by the owner 50 of the housing accommodation and the owner resides in such housing 51 accommodation or (4) solely with respect to age and familial status to 52 the restriction of the sale, rental or lease of housing accommodations 53 exclusively to persons sixty-two years of age or older and the spouse of 54 any such person, or for housing intended and operated for occupancy by 55 at least one person fifty-five years of age or older per unit. In deter- 56 mining whether housing is intended and operated for occupancy by persons
A. 7170--A 8 1 fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C. 3607 2 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended, shall 3 apply. However, such rental property shall no longer be exempt from the 4 provisions of subparagraphs one and two of this paragraph if there is 5 unlawful discriminatory conduct pursuant to subparagraph three of this 6 paragraph. 7 (ii) The provisions of subparagraphs one, two, and three of this para- 8 graph shall not apply (1) to the restriction of the rental of all rooms 9 in a housing accommodation to individuals of the same sex, (2) to the 10 rental of a room or rooms in a housing accommodation, if such rental is 11 by the occupant of the housing accommodation or by the owner of the 12 housing accommodation and the owner resides in such housing accommo- 13 dation, or (3) solely with respect to age and familial status to the 14 restriction of the sale, rental or lease of housing accommodations 15 exclusively to persons sixty-two years of age or older and the spouse of 16 any such person, or for housing intended and operated for occupancy by 17 at least one person fifty-five years of age or older per unit. In deter- 18 mining whether housing is intended and operated for occupancy by persons 19 fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C. 3607 20 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended, shall 21 apply. 22 (b) It shall be an unlawful discriminatory practice for the owner, 23 lessee, sub-lessee, or managing agent of, or other person having the 24 right of ownership or possession of or the right to sell, rent or lease, 25 land or commercial space: 26 (1) To refuse to sell, rent, lease or otherwise deny to or withhold 27 from any person or group of persons land or commercial space because of 28 the race, creed, color, national origin, citizenship or immigration 29 status, sexual orientation, gender identity or expression, military 30 status, sex, height, weight, age, disability, marital status, status as 31 a victim of domestic violence, or familial status of such person or 32 persons, or to represent that any housing accommodation or land is not 33 available for inspection, sale, rental or lease when in fact it is so 34 available; 35 (2) To discriminate against any person because of race, creed, color, 36 national origin, citizenship or immigration status, sexual orientation, 37 gender identity or expression, military status, sex, height, weight, 38 age, disability, marital status, status as a victim of domestic 39 violence, or familial status in the terms, conditions or privileges of 40 the sale, rental or lease of any such land or commercial space; or in 41 the furnishing of facilities or services in connection therewith; 42 (3) To print or circulate or cause to be printed or circulated any 43 statement, advertisement or publication, or to use any form of applica- 44 tion for the purchase, rental or lease of such land or commercial space 45 or to make any record or inquiry in connection with the prospective 46 purchase, rental or lease of such land or commercial space which 47 expresses, directly or indirectly, any limitation, specification or 48 discrimination as to race, creed, color, national origin, citizenship or 49 immigration status, sexual orientation, gender identity or expression, 50 military status, sex, height, weight, age, disability, marital status, 51 status as a victim of domestic violence, or familial status; or any 52 intent to make any such limitation, specification or discrimination. 53 (4) With respect to age and familial status, the provisions of this 54 paragraph shall not apply to the restriction of the sale, rental or 55 lease of land or commercial space exclusively to persons fifty-five 56 years of age or older and the spouse of any such person, or to the
A. 7170--A 9 1 restriction of the sale, rental or lease of land to be used for the 2 construction, or location of housing accommodations exclusively for 3 persons sixty-two years of age or older, or intended and operated for 4 occupancy by at least one person fifty-five years of age or older per 5 unit. In determining whether housing is intended and operated for occu- 6 pancy by persons fifty-five years of age or older, Sec. 807(b) (2) (c) 7 (42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988, as 8 amended, shall apply. 9 (c) It shall be an unlawful discriminatory practice for any real 10 estate broker, real estate salesperson or employee or agent thereof: 11 (1) To refuse to sell, rent or lease any housing accommodation, land 12 or commercial space to any person or group of persons or to refuse to 13 negotiate for the sale, rental or lease, of any housing accommodation, 14 land or commercial space to any person or group of persons because of 15 the race, creed, color, national origin, citizenship or immigration 16 status, sexual orientation, gender identity or expression, military 17 status, sex, height, weight, age, disability, marital status, status as 18 a victim of domestic violence, lawful source of income or familial 19 status of such person or persons, or to represent that any housing 20 accommodation, land or commercial space is not available for inspection, 21 sale, rental or lease when in fact it is so available, or otherwise to 22 deny or withhold any housing accommodation, land or commercial space or 23 any facilities of any housing accommodation, land or commercial space 24 from any person or group of persons because of the race, creed, color, 25 national origin, citizenship or immigration status, sexual orientation, 26 gender identity or expression, military status, sex, height, weight, 27 age, disability, marital status, lawful source of income or familial 28 status of such person or persons. 29 (2) To print or circulate or cause to be printed or circulated any 30 statement, advertisement or publication, or to use any form of applica- 31 tion for the purchase, rental or lease of any housing accommodation, 32 land or commercial space or to make any record or inquiry in connection 33 with the prospective purchase, rental or lease of any housing accommo- 34 dation, land or commercial space which expresses, directly or indirect- 35 ly, any limitation, specification, or discrimination as to race, creed, 36 color, national origin, citizenship or immigration status, sexual orien- 37 tation, gender identity or expression, military status, sex, height, 38 weight, age, disability, marital status, status as a victim of domestic 39 violence, lawful source of income or familial status; or any intent to 40 make any such limitation, specification or discrimination. 41 (3) With respect to age and familial status, the provisions of this 42 paragraph shall not apply to the restriction of the sale, rental or 43 lease of any housing accommodation, land or commercial space exclusively 44 to persons fifty-five years of age or older and the spouse of any such 45 person, or to the restriction of the sale, rental or lease of any hous- 46 ing accommodation or land to be used for the construction or location of 47 housing accommodations for persons sixty-two years of age or older, or 48 intended and operated for occupancy by at least one person fifty-five 49 years of age or older per unit. In determining whether housing is 50 intended and operated for occupancy by persons fifty-five years of age 51 or older, Sec. 807 (b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the 52 federal Fair Housing Act of 1988, as amended, shall apply. 53 (d) It shall be an unlawful discriminatory practice for any real 54 estate board, because of the race, creed, color, national origin, citi- 55 zenship or immigration status, sexual orientation, gender identity or 56 expression, military status, age, sex, height, weight, disability, mari-
A. 7170--A 10 1 tal status, status as a victim of domestic violence, lawful source of 2 income or familial status of any individual who is otherwise qualified 3 for membership, to exclude or expel such individual from membership, or 4 to discriminate against such individual in the terms, conditions and 5 privileges of membership in such board. 6 § 7. Subdivisions 1, 2 and 3 of section 296-a of the executive law, as 7 separately amended by chapters 202 and 748 of the laws of 2022, are 8 amended to read as follows: 9 1. It shall be an unlawful discriminatory practice for any creditor or 10 any officer, agent or employee thereof: 11 a. In the case of applications for credit with respect to the 12 purchase, acquisition, construction, rehabilitation, repair or mainte- 13 nance of any housing accommodation, land or commercial space to discrim- 14 inate against any such applicant because of the race, creed, color, 15 national origin, citizenship or immigration status, sexual orientation, 16 gender identity or expression, military status, age, sex, height, 17 weight, marital status, status as a victim of domestic violence, disa- 18 bility, or familial status of such applicant or applicants or any 19 member, stockholder, director, officer or employee of such applicant or 20 applicants, or of the prospective occupants or tenants of such housing 21 accommodation, land or commercial space, in the granting, withholding, 22 extending or renewing, or in the fixing of the rates, terms or condi- 23 tions of, any such credit; 24 b. To discriminate in the granting, withholding, extending or renew- 25 ing, or in the fixing of the rates, terms or conditions of, any form of 26 credit, on the basis of race, creed, color, national origin, citizenship 27 or immigration status, sexual orientation, gender identity or 28 expression, military status, age, sex, height, weight, marital status, 29 status as a victim of domestic violence, disability, or familial status; 30 c. To use any form of application for credit or use or make any record 31 or inquiry which expresses, directly or indirectly, any limitation, 32 specification, or discrimination as to race, creed, color, national 33 origin, citizenship or immigration status, sexual orientation, gender 34 identity or expression, military status, age, sex, height, weight, mari- 35 tal status, status as a victim of domestic violence, disability, or 36 familial status; 37 d. To make any inquiry of an applicant concerning his or her capacity 38 to reproduce, or his or her use or advocacy of any form of birth control 39 or family planning; 40 e. To refuse to consider sources of an applicant's income or to 41 subject an applicant's income to discounting, in whole or in part, 42 because of an applicant's race, creed, color, national origin, citizen- 43 ship or immigration status, sexual orientation, gender identity or 44 expression, military status, age, sex, height, weight, marital status, 45 status as a victim of domestic violence, childbearing potential, disa- 46 bility, or familial status; 47 f. To discriminate against a married person because such person 48 neither uses nor is known by the surname of his or her spouse. 49 This paragraph shall not apply to any situation where the use of a 50 surname would constitute or result in a criminal act. 51 2. Without limiting the generality of subdivision one of this section, 52 it shall be considered discriminatory if, because of an applicant's or 53 class of applicants' race, creed, color, national origin, citizenship or 54 immigration status, sexual orientation, gender identity or expression, 55 military status, age, sex, height, weight, marital status, status as a 56 victim of domestic violence, disability, or familial status, (i) an
A. 7170--A 11 1 applicant or class of applicants is denied credit in circumstances where 2 other applicants of like overall credit worthiness are granted credit, 3 or (ii) special requirements or conditions, such as requiring co-obli- 4 gors or reapplication upon marriage, are imposed upon an applicant or 5 class of applicants in circumstances where similar requirements or 6 conditions are not imposed upon other applicants of like overall credit 7 worthiness. 8 3. It shall not be considered discriminatory if credit differen- 9 tiations or decisions are based upon factually supportable, objective 10 differences in applicants' overall credit worthiness, which may include 11 reference to such factors as current income, assets and prior credit 12 history of such applicants, as well as reference to any other relevant 13 factually supportable data; provided, however, that no creditor shall 14 consider, in evaluating the credit worthiness of an applicant, aggregate 15 statistics or assumptions relating to race, creed, color, national 16 origin, citizenship or immigration status, sexual orientation, gender 17 identity or expression, military status, sex, height, weight, marital 18 status, status as a victim of domestic violence or disability, or to the 19 likelihood of any group of persons bearing or rearing children, or for 20 that reason receiving diminished or interrupted income in the future. 21 § 8. Paragraphs a, b and c of subdivision 2 and paragraph b of subdi- 22 vision 3 of section 296-c of the executive law, as separately amended by 23 chapters 202 and 748 of the laws of 2022, are amended to read as 24 follows: 25 a. refuse to hire or employ or to bar or to discharge from internship 26 an intern or to discriminate against such intern in terms, conditions or 27 privileges of employment as an intern because of the intern's age, race, 28 creed, color, national origin, citizenship or immigration status, sexual 29 orientation, military status, sex, height, weight, disability, predis- 30 posing genetic characteristics, marital status, or status as a victim of 31 domestic violence; 32 b. discriminate against an intern in receiving, classifying, disposing 33 or otherwise acting upon applications for internships because of the 34 intern's age, race, creed, color, national origin, citizenship or immi- 35 gration status, sexual orientation, military status, sex, height, 36 weight, disability, predisposing genetic characteristics, marital 37 status, or status as a victim of domestic violence; 38 c. print or circulate or cause to be printed or circulated any state- 39 ment, advertisement or publication, or to use any form of application 40 for employment as an intern or to make any inquiry in connection with 41 prospective employment, which expresses directly or indirectly, any 42 limitation, specification or discrimination as to age, race, creed, 43 color, national origin, citizenship or immigration status, sexual orien- 44 tation, military status, sex, height, weight, disability, predisposing 45 genetic characteristics, marital status or status as a victim of domes- 46 tic violence, or any intent to make any such limitation, specification 47 or discrimination, unless based upon a bona fide occupational qualifica- 48 tion; provided, however, that neither this paragraph nor any provision 49 of this chapter or other law shall be construed to prohibit the depart- 50 ment of civil service or the department of personnel of any city 51 containing more than one county from requesting information from appli- 52 cants for civil service internships or examinations concerning any of 53 the aforementioned characteristics, other than sexual orientation, for 54 the purpose of conducting studies to identify and resolve possible prob- 55 lems in recruitment and testing of members of minority groups to ensure 56 the fairest possible and equal opportunities for employment in the civil
A. 7170--A 12 1 service for all persons, regardless of age, race, creed, color, national 2 origin, citizenship or immigration status, sexual orientation, military 3 status, sex, height, weight, disability, predisposing genetic character- 4 istics, marital status or status as a victim of domestic violence; 5 b. subject an intern to unwelcome harassment based on age, sex, 6 height, weight, race, creed, color, sexual orientation, military status, 7 disability, predisposing genetic characteristics, marital status, status 8 as a victim of domestic violence, national origin, or citizenship or 9 immigration status, or where such harassment has the purpose or effect 10 of unreasonably interfering with the intern's work performance by creat- 11 ing an intimidating, hostile, or offensive working environment. 12 § 9. Subdivision 2 of section 296-c of the executive law is amended by 13 adding a new paragraph f to read as follows: 14 f. The provisions of this subdivision relating to height and weight 15 shall not apply to an action by an employer based on a person's height 16 or weight when such action is required or permitted by federal, state, 17 or local law or regulation. Nothing in this subdivision shall be 18 construed to prevent alternative actions reasonably taken by an employer 19 to allow persons who do not meet height or weight criteria to perform 20 the essential requisites and/or normal operations of an internship, 21 including offering incentives that support weight management as part of 22 a voluntary wellness program. In instances where an employer is not 23 required by law or regulation or permitted by law or regulation as 24 described in this paragraph, it shall be an affirmative defense that an 25 action was taken because there were no available alternative actions the 26 employer could have taken that could have reasonably allowed the person 27 to perform the essential requisites and/or normal operations of the 28 internship. 29 § 10. This act shall not annul, alter, affect or exempt any employer 30 subject to the provisions of this act from complying with the laws, 31 ordinances, rules or regulations of any locality, except to the extent 32 that such laws, ordinances, rules or regulations are inconsistent with 33 any provision of this act, but no such law, ordinance, rule or regu- 34 lation shall be considered inconsistent if it affords equal or greater 35 protection to the employee. 36 § 11. This act shall take effect on the one hundred eightieth day 37 after it shall have become a law. Effective immediately, the addition, 38 amendment and/or repeal of any rule or regulation necessary for the 39 implementation of this act on its effective date are authorized to be 40 made and completed on or before such effective date.