Bill Text: NY S02440 | 2023-2024 | General Assembly | Amended
Bill Title: Prohibits discrimination on the basis of a person's height or weight in opportunities of employment, housing, and access to public accommodations.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed) 2024-05-30 - referred to governmental operations [S02440 Detail]
Download: New_York-2023-S02440-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2440--B Cal. No. 1036 2023-2024 Regular Sessions IN SENATE January 20, 2023 ___________ Introduced by Sens. HOYLMAN-SIGAL, KRUEGER, WEBB -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- recommitted to the Committee on Investigations and Government Operations in accordance with Senate Rule 6, sec. 8 -- reported favor- ably from said committee, ordered to first and second report, amended on second report, ordered to a third reading, and to be reprinted as amended, retaining its place in the order of third reading 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06818-05-4S. 2440--B 2 1 acting upon applications for its services or in referring an applicant 2 or applicants to an employer or employers. 3 (c) For a labor organization, because of the age, race, creed, color, 4 national origin, citizenship or immigration status, sexual orientation, 5 gender identity or expression, military status, sex, height, weight, 6 disability, predisposing genetic characteristics, familial status, mari- 7 tal status, or status as a victim of domestic violence, of any individ- 8 ual, to exclude or to expel from its membership such individual or to 9 discriminate in any way against any of its members or against any 10 employer or any individual employed by an employer. 11 (d) For any employer or employment agency to print or circulate or 12 cause to be printed or circulated any statement, advertisement or publi- 13 cation, or to use any form of application for employment or to make any 14 inquiry in connection with prospective employment, which expresses 15 directly or indirectly, any limitation, specification or discrimination 16 as to age, race, creed, color, national origin, citizenship or immi- 17 gration status, sexual orientation, gender identity or expression, mili- 18 tary status, sex, height, weight, disability, predisposing genetic char- 19 acteristics, familial status, marital status, or status as a victim of 20 domestic violence, or any intent to make any such limitation, specifica- 21 tion or discrimination, unless based upon a bona fide occupational qual- 22 ification; provided, however, that neither this paragraph nor any 23 provision of this chapter or other law shall be construed to prohibit 24 the department of civil service or the department of personnel of any 25 city containing more than one county from requesting information from 26 applicants for civil service examinations concerning any of the afore- 27 mentioned characteristics, other than sexual orientation, for the 28 purpose of conducting studies to identify and resolve possible problems 29 in recruitment and testing of members of minority groups to ensure the 30 fairest possible and equal opportunities for employment in the civil 31 service for all persons, regardless of age, race, creed, color, national 32 origin, citizenship or immigration status, sexual orientation or gender 33 identity or expression, military status, sex, height, weight, disabili- 34 ty, predisposing genetic characteristics, familial status, or marital 35 status. 36 (h) (1) For an employer, licensing agency, employment agency or labor 37 organization to subject any individual to harassment because of an indi- 38 vidual's age, race, creed, color, national origin, citizenship or immi- 39 gration status, sexual orientation, gender identity or expression, mili- 40 tary status, sex, height, weight, disability, predisposing genetic 41 characteristics, familial status, marital status, status as a victim of 42 domestic violence, or because the individual has opposed any practices 43 forbidden under this article or because the individual has filed a 44 complaint, testified or assisted in any proceeding under this article, 45 regardless of whether such harassment would be considered severe or 46 pervasive under precedent applied to harassment claims. Such harassment 47 is an unlawful discriminatory practice when it subjects an individual to 48 inferior terms, conditions or privileges of employment because of the 49 individual's membership in one or more of these protected categories. 50 The fact that such individual did not make a complaint about the harass- 51 ment to such employer, licensing agency, employment agency or labor 52 organization shall not be determinative of whether such employer, 53 licensing agency, employment agency or labor organization shall be 54 liable. Nothing in this section shall imply that an employee must demon- 55 strate the existence of an individual to whom the employee's treatment 56 must be compared. It shall be an affirmative defense to liability underS. 2440--B 3 1 this subdivision that the harassing conduct does not rise above the 2 level of what a reasonable victim of discrimination with the same 3 protected characteristic or characteristics would consider petty slights 4 or trivial inconveniences. 5 (2) The provisions of this subdivision relating to height and weight 6 shall not apply to an action by an employer, licensing agency, employ- 7 ment agency, or labor organization based on a person's height or weight 8 when such action is required by federal law or regulation. Nothing in 9 this subdivision shall be construed to prevent alternative actions 10 reasonably taken by an employer, licensing agency, employment agency, or 11 labor organization to allow persons who do not meet occupational height 12 or weight criteria to perform the essential requisites and/or normal 13 operations of a job. In instances where an employer, licensing agency, 14 employment agency, or labor organization's action is not required by law 15 or regulation as described in this paragraph, it shall be an affirmative 16 defense that an action was taken because there were no available alter- 17 native actions the entity could have taken that could have reasonably 18 allowed the person to perform the essential requisites and/or normal 19 operations of the job. 20 § 2. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296 of 21 the executive law, as separately amended by chapters 202 and 748 of the 22 laws of 2022, are amended and a new paragraph (e) is added to read as 23 follows: 24 (b) To deny to or withhold from any person because of race, creed, 25 color, national origin, citizenship or immigration status, sexual orien- 26 tation, gender identity or expression, military status, sex, height, 27 weight, age, disability, familial status, marital status, or status as a 28 victim of domestic violence, the right to be admitted to or participate 29 in a guidance program, an apprenticeship training program, on-the-job 30 training program, executive training program, or other occupational 31 training or retraining program; 32 (c) To discriminate against any person in [his or her] pursuit of such 33 programs or to discriminate against such a person in the terms, condi- 34 tions or privileges of such programs because of race, creed, color, 35 national origin, citizenship or immigration status, sexual orientation, 36 gender identity or expression, military status, sex, height, weight, 37 age, disability, familial status, marital status, or status as a victim 38 of domestic violence; 39 (d) To print or circulate or cause to be printed or circulated any 40 statement, advertisement or publication, or to use any form of applica- 41 tion for such programs or to make any inquiry in connection with such 42 program which expresses, directly or indirectly, any limitation, spec- 43 ification or discrimination as to race, creed, color, national origin, 44 citizenship or immigration status, sexual orientation, gender identity 45 or expression, military status, sex, height, weight, age, disability, 46 familial status, marital status, or status as a victim of domestic 47 violence, or any intention to make any such limitation, specification or 48 discrimination, unless based on a bona fide occupational qualification. 49 (e) The provisions of this subdivision relating to height and weight 50 shall not apply to an action by an employer, labor organization, employ- 51 ment agency or any joint labor-management committee controlling appren- 52 tice training programs based on a person's height or weight when such 53 action is required by federal law or regulation. Nothing in this subdi- 54 vision shall be construed to prevent alternative actions reasonably 55 taken by an employer, labor organization, employment agency or any joint 56 labor-management committee controlling apprentice training programs toS. 2440--B 4 1 allow persons who do not meet programmatic height or weight criteria to 2 perform the essential requisites and/or normal operations of a guidance 3 program, an apprenticeship training program, on-the-job training 4 program, executive training program, or other occupational training 5 or retraining 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 as described in this paragraph, it shall be an affirmative 9 defense that an action was taken because there were no available alter- 10 native actions the entity could have taken that could have reasonably 11 allowed the person to perform the essential requisites and/or normal 12 operations of the guidance program, apprenticeship training program, 13 on-the-job training program, executive training program, or other occu- 14 pational 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 reasonable amusement industry safety 51 standards. 52 (f) The provisions of this subdivision relating to height and weight 53 shall not apply to an action by any person, being the owner, lessee, 54 proprietor, manager, superintendent, agent or employee of any place of 55 public accommodation, resort or amusement, based on a person's height or 56 weight when such action is required by federal law or regulation, orS. 2440--B 5 1 required by reasonable state safety law or regulation. Nothing in this 2 subdivision shall be construed to prevent alternative actions reasonably 3 taken by any person, being the owner, lessee, proprietor, manager, 4 superintendent, agent or employee of any place of public accommodation, 5 resort or amusement, to allow persons who do not meet height or weight 6 criteria necessary for the normal operations of a particular place or 7 provider of accommodation, or a category of such places or providers, to 8 use or enjoy the accommodations, advantages, services, facilities, or 9 privileges of the place or provider of public accommodation. In 10 instances where any person, being the owner, lessee, proprietor, manag- 11 er, superintendent, agent or employee of any place of public accommo- 12 dation, resort or amusement, action is not required by law or regulation 13 as described in this paragraph, it shall be an affirmative defense that 14 an action was taken because there were no available alternative actions 15 the entity could have taken that could have reasonably allowed the 16 person to use or enjoy the accommodations, advantages, services, facili- 17 ties, or privileges of the place or provider of public accommodation. 18 § 4. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section 19 296 of the executive law, as separately amended by chapters 202 and 748 20 of the laws of 2022, are amended to read as follows: 21 (a) To refuse to sell, rent or lease or otherwise to deny to or with- 22 hold from any person or group of persons such housing accommodations 23 because of the race, creed, color, disability, national origin, citizen- 24 ship or immigration status, sexual orientation, gender identity or 25 expression, military status, age, sex, height, weight, marital status, 26 status as a victim of domestic violence, lawful source of income or 27 familial status of such person or persons, or to represent that any 28 housing accommodation or land is not available for inspection, sale, 29 rental or lease when in fact it is so available. 30 (b) To discriminate against any person because of [his or her] race, 31 creed, color, disability, national origin, citizenship or immigration 32 status, sexual orientation, gender identity or expression, military 33 status, age, sex, height, weight, marital status, status as a victim of 34 domestic violence, lawful source of income or familial status in the 35 terms, conditions or privileges of any publicly-assisted housing accom- 36 modations or in the furnishing of facilities or services in connection 37 therewith. 38 (c) To cause to be made any written or oral inquiry or record concern- 39 ing the race, creed, color, disability, national origin, citizenship or 40 immigration status, sexual orientation, gender identity or expression, 41 membership in the reserve armed forces of the United States or in the 42 organized militia of the state, age, sex, height, weight, marital 43 status, status as a victim of domestic violence, lawful source of income 44 or familial status of a person seeking to rent or lease any publicly-as- 45 sisted housing accommodation; provided, however, that nothing in this 46 subdivision shall prohibit a member of the reserve armed forces of the 47 United States or in the organized militia of the state from voluntarily 48 disclosing such membership. 49 (c-1) To print or circulate or cause to be printed or circulated any 50 statement, advertisement or publication, or to use any form of applica- 51 tion for the purchase, rental or lease of such housing accommodation or 52 to make any record or inquiry in connection with the prospective 53 purchase, rental or lease of such a housing accommodation which 54 expresses, directly or indirectly, any limitation, specification or 55 discrimination as to race, creed, color, national origin, citizenship or 56 immigration status, sexual orientation, gender identity or expression,S. 2440--B 6 1 military status, sex, height, weight, age, disability, marital status, 2 status as a victim of domestic violence, lawful source of income or 3 familial status, or any intent to make any such limitation, specifica- 4 tion or discrimination. 5 § 5. Subdivisions 3-b, 4 and 13 of section 296 of the executive law, 6 as separately amended by chapters 202 and 748 of the laws of 2022, are 7 amended to read as follows: 8 3-b. It shall be an unlawful discriminatory practice for any real 9 estate broker, real estate salesperson or employee or agent thereof or 10 any other individual, corporation, partnership or organization for the 11 purpose of inducing a real estate transaction from which any such person 12 or any of its stockholders or members may benefit financially, to repre- 13 sent that a change has occurred or will or may occur in the composition 14 with respect to race, creed, color, national origin, citizenship or 15 immigration status, sexual orientation, gender identity or expression, 16 military status, sex, height, weight, disability, marital status, status 17 as a victim of domestic violence, or familial status of the owners or 18 occupants in the block, neighborhood or area in which the real property 19 is located, and to represent, directly or indirectly, that this change 20 will or may result in undesirable consequences in the block, neighbor- 21 hood or area in which the real property is located, including but not 22 limited to the lowering of property values, an increase in criminal or 23 anti-social behavior, or a decline in the quality of schools or other 24 facilities. 25 4. (a) It shall be an unlawful discriminatory practice for an educa- 26 tional institution to deny the use of its facilities to any person 27 otherwise qualified, or to permit the harassment of any student or 28 applicant, by reason of [his] race, color, religion, disability, 29 national origin, citizenship or immigration status, sexual orientation, 30 gender identity or expression, military status, sex, height, weight, 31 age, marital status, or status as a victim of domestic violence, except 32 that any such institution which establishes or maintains a policy of 33 educating persons of one sex exclusively may admit students of only one 34 sex. 35 (b) The provisions of this subdivision relating to height and weight 36 shall not apply to an action by an educational institution based on a 37 person's height or weight when such action is required by federal law or 38 regulation. Nothing in this subdivision shall be construed to prevent 39 alternative actions reasonably taken by an educational institution to 40 allow persons who do not meet height or weight criteria to participate 41 in educational institution programs, such as athletic programs or other 42 extracurricular programs. In instances where an educational facility's 43 action is not required by law or regulation as described in this para- 44 graph, it shall be an affirmative defense that an action was taken 45 because there were no available alternative actions the entity could 46 have taken that could have reasonably allowed the person to participate 47 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)S. 2440--B 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 personsS. 2440--B 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 theS. 2440--B 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-S. 2440--B 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] appli- 38 cant's capacity to reproduce, or [his or her] such applicant's use or 39 advocacy of any form of birth control 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] their 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) anS. 2440--B 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. Subdivision 2 and paragraph b of subdivision 3 of section 296-c 22 of the executive law, subdivision 2 as separately amended by chapters 23 202 and 748 of the laws of 2022, paragraphs a, b, and c of subdivision 2 24 and paragraph b of subdivision 3 as amended by chapter 305 of the laws 25 of 2023, are amended to read as follows: 26 2. It shall be an unlawful discriminatory practice for an employer to: 27 a. refuse to hire or employ or to bar or to discharge from internship 28 an intern or to discriminate against such intern in terms, conditions or 29 privileges of employment as an intern because of the intern's age, race, 30 creed, color, national origin, citizenship or immigration status, sexual 31 orientation, gender identity or expression, military status, sex, 32 height, weight, disability, predisposing genetic characteristics, mari- 33 tal status, or status as a victim of domestic violence; 34 b. discriminate against an intern in receiving, classifying, disposing 35 or otherwise acting upon applications for internships because of the 36 intern's age, race, creed, color, national origin, citizenship or immi- 37 gration status, sexual orientation, gender identity or expression, mili- 38 tary status, sex, height, weight, disability, predisposing genetic char- 39 acteristics, marital status, or status as a victim of domestic violence; 40 c. print or circulate or cause to be printed or circulated any state- 41 ment, advertisement or publication, or to use any form of application 42 for employment as an intern or to make any inquiry in connection with 43 prospective employment, which expresses directly or indirectly, any 44 limitation, specification or discrimination as to age, race, creed, 45 color, national origin, citizenship or immigration status, sexual orien- 46 tation, gender identity or expression, military status, sex, height, 47 weight, disability, predisposing genetic characteristics, marital status 48 or status as a victim of domestic violence, or any intent to make any 49 such limitation, specification or discrimination, unless based upon a 50 bona fide occupational qualification; provided, however, that neither 51 this paragraph nor any provision of this chapter or other law shall be 52 construed to prohibit the department of civil service or the department 53 of personnel of any city containing more than one county from requesting 54 information from applicants for civil service internships or examina- 55 tions concerning any of the aforementioned characteristics, other than 56 sexual orientation, for the purpose of conducting studies to identifyS. 2440--B 12 1 and resolve possible problems in recruitment and testing of members of 2 minority groups to ensure the fairest possible and equal opportunities 3 for employment in the civil service for all persons, regardless of age, 4 race, creed, color, national origin, citizenship or immigration status, 5 sexual orientation, military status, sex, height, weight, disability, 6 predisposing genetic characteristics, marital status or status as a 7 victim of domestic violence; 8 d. to discharge, expel or otherwise discriminate against any person 9 [because he or she] who has opposed any practices forbidden under this 10 article or [because he or she] who has filed a complaint, testified or 11 assisted in any proceeding under this article; [or] 12 e. to compel an intern who is pregnant to take a leave of absence, 13 unless the intern is prevented by such pregnancy from performing the 14 activities involved in the job or occupation in a reasonable manner[.]; 15 or 16 f. the provisions of this subdivision relating to height and weight 17 shall not apply to an action by an employer based on a person's height 18 or weight when such action is required by federal law or regulation. 19 Nothing in this subdivision shall be construed to prevent alternative 20 actions reasonably taken by an employer to allow persons who do not meet 21 height or weight criteria to perform the essential requisites and/or 22 normal operations of an internship. In instances where an employer is 23 not required by law or regulation as described in this paragraph, it 24 shall be an affirmative defense that an action was taken because there 25 were no available alternative actions the employer could have taken that 26 could have reasonably allowed the person to perform the essential requi- 27 sites and/or normal operations of the internship. 28 b. subject an intern to unwelcome harassment based on age, sex, 29 height, weight, race, creed, color, sexual orientation, gender identity 30 or expression, military status, disability, predisposing genetic charac- 31 teristics, marital status, status as a victim of domestic violence, 32 national origin, or citizenship or immigration status, or where such 33 harassment has the purpose or effect of unreasonably interfering with 34 the intern's work performance by creating an intimidating, hostile, or 35 offensive working environment. 36 § 9. Section 292 of the executive law is amended by adding two new 37 subdivisions 42 and 43 to read as follows: 38 42. The term "weight" means a numerical measurement of total body 39 weight, the ratio of a person's weight in relation to height, the ratio 40 of a person's weight in relation to any measurement or measurements, or 41 an individual's unique physical composition of weight through body size, 42 shape and proportions. Weight includes measurements of individual body 43 components, such as waist, hip, or chest and any ratio of such body 44 measurements. Weight encompasses, but is not limited to, an impression 45 of a person as fat or thin regardless of numerical measurement. An indi- 46 vidual's body size, shape proportions, and composition may make them 47 appear fat or thin regardless of numerical weight. 48 43. The term "height" means a numerical measurement of total body 49 height, the expression of a person's height in relation to weight, the 50 ratio of a person's height in relation to any measurement or measure- 51 ments, or an individual's unique physical composition of height through 52 body size, shape, or proportions. Height includes measurements of indi- 53 vidual body components, such as leg, torso, arm, foot, and neck. Height 54 encompasses, but is not limited to, an impression of a person as tall or 55 short regardless of numerical measurement. The length of a person's 56 limbs in proportion to the person's body may create the impression ofS. 2440--B 13 1 the person as tall, short, or atypically proportioned, independent of 2 numerical measurements of height. 3 § 10. This act shall not annul, alter, affect or exempt any employer 4 subject to the provisions of this act from complying with the laws, 5 ordinances, rules or regulations of any locality, except to the extent 6 that such laws, ordinances, rules or regulations are inconsistent with 7 any provision of this act, but no such law, ordinance, rule or regu- 8 lation shall be considered inconsistent if it affords equal or greater 9 protection to the employee. 10 § 11. This act shall take effect on the one hundred eightieth day 11 after it shall have become a law. Effective immediately, the addition, 12 amendment and/or repeal of any rule or regulation necessary for the 13 implementation of this act on its effective date are authorized to be 14 made and completed on or before such effective date.
