The New York State Legislature is considering an amendment to the Executive Law to codify the “Disparate Impact” standard in New York State’s Human Rights Law. This change would provide that in cases of alleged housing discrimination, an unlawful discriminatory practice may be established by a practice’s discriminatory eff ect, even if such practice was not motivated by a discriminatory intent or was even intended on being discriminatory.
This would mean that an action by an owner of residential property or a failure to act by an owner could be considered discriminatory and expose the owner to fines and penalties if the effect of the action had a discriminatory impact, even if the owner’s intent was not discriminatory.
If enacted, this bill could expose owners to liability even if the owner had no intention to discriminate and in fact did not discriminate, if the eff ect of the action was considered discriminatory by someone.
Specifically, in any case alleging housing discrimination, an unlawful discriminatory practice may be established by a practice’s discriminatory effect, even if such practice was not motivated by a discriminatory intent. Therefore, the practice may still be lawful if supported by a legally sufficient justification but can still be challenged by someone else and their lawyer. If sued, the party would have to prove the negative, that their action did not have a discriminatory effect.
In effect, a practice would have a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces or perpetuates segregated housing patterns because of race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, age, disability, marital status, status as a victim of domestic violence, lawful source of income or familial.
A legally sufficient justification exists where the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent; and those interests could not be served by another practice that has a less discriminatory effect.
A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative. The complainant has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect. Once the complainant satisfies the burden of proof, the respondent has the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent.
If the respondent satisfies the burden of proof, the complainant may still prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.
A demonstration that a practice is supported by a legally sufficient justification may not be used as a defense against a claim of intentional discrimination.
If this bill is enacted and signed by the governor, it could be subtitled a Lawyer’s Full Employment Act because every decision an owner makes with regard to residential property could result in a claim that one group or another will be discriminated against or felt discriminated because the action has a disparate impact upon one group or another and is therefore discriminatory.
Like similar legislation, in the end the owner will have to prove that the owner’s action is not discriminatory and does not have a disparate impact on anyone.
Therefore, the result would be a judge determining the merits of the plaintiff ’s case in a situation where there is no clear definition of who has done what to whom.
There can be no certainty as to the outcome, and since it is an issue of facts, an incorrect decision could not be corrected on appeal.
The only thing you can do to prevent this from happening is to reach out to anyone you know who knows a member of the State Legislature and work to keep the bill from coming out of committee and being enacted.
This bill is an example of what Mark Twain meant when he wrote, “No man’s life, liberty or property is safe while the Legislature is in session.”
Stuart M. Saft
Partner and Real Estate Practice Group Leader
Holland & Knight
787 Seventh Ave., Suite 3100
New York, NY 10019
stuart.saft@hklaw.com
(212)513-3308
