A00814 Summary:

BILL NOA00814
 
SAME ASSAME AS S01760
 
SPONSORSolages
 
COSPNSRThiele, Jean-Pierre, Brown K
 
MLTSPNSR
 
Amd §§296 & 292, add §297-a, Exec L; add §§3009-a & 3039, amd §§3009 & 3813, Ed L; amd §§40-c & 40-d, add §§49 & 49-a, Civ Rts L
 
Relates to certain discriminatory practices; relates to the qualification of professionals in education; provides for the tolling of certain statutes of limitations; provides a private cause of action for a person who is qualified for a public contract who has been deprived of equal opportunity to such public contract.
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A00814 Actions:

BILL NOA00814
 
01/11/2023referred to governmental operations
01/03/2024referred to governmental operations
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A00814 Committee Votes:

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A00814 Floor Votes:

There are no votes for this bill in this legislative session.
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A00814 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           814
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 11, 2023
                                       ___________
 
        Introduced  by  M.  of A. SOLAGES, THIELE, JEAN-PIERRE, K. BROWN -- read
          once and referred to the Committee on Governmental Operations
 
        AN ACT to amend the executive law, the civil rights law and  the  educa-
          tion  law,  in  relation  to  certain discriminatory practices; and to
          amend the education law, in relation to the hiring  and  qualification
          of professionals in education
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "Hiring Outstanding Professionals in Education (HOPE) Act".
     3    §  2. Section 296 of the executive law is amended by adding eleven new
     4  subdivisions 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, and 33 to  read  as
     5  follows:
     6    23. It shall be an unlawful discriminatory practice for an employer or
     7  licensing  agency to bar any member of a protected class from employment
     8  opportunity by violating an established law or policy  that  would  have
     9  provided such member of the protected class with equal employment oppor-
    10  tunity.
    11    24.  The  only legitimate business or occupational necessity exemption
    12  for excluding a protected class from equal employment opportunity  shall
    13  be  a  real  occupational  qualification  or  a  lawful protected status
    14  oriented contract.
    15    25. It shall be an unlawful discriminatory practice for  a  person  or
    16  agency  to  deny  equal  opportunity  to  a  full and productive life by
    17  assigning or approving an advantage or disadvantage  in  opportunity  to
    18  persons according to age,  race,  creed,  color,  national origin, sexu-
    19  al  orientation,  gender  identity  or expression, military status, sex,
    20  disability, predisposing genetic characteristics, familial status, mari-
    21  tal status, status as a victim of domestic violence or  previous  condi-
    22  tion of servitude.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02168-01-3

        A. 814                              2
 
     1    26.  It  shall  be an unlawful discriminatory practice for a person or
     2  agency to violate federal civil rights law  or  engage  in  an  unlawful
     3  discriminatory practice as defined by federal civil rights law.
     4    27.  It  shall  be an unlawful discriminatory practice for a person or
     5  agency to engage in disparate treatment. Unlawful  discriminatory  prac-
     6  tice by disparate treatment occurs when:
     7    (a)  the  individual  being  discriminated  against  is  a member of a
     8  protected class and the employer, institution or person knows the  indi-
     9  vidual's  protected  class  or knows that members of the protected class
    10  require equal treatment;
    11    (b) the act favors or assigns advantage to one  protected  class  over
    12  another protected class; and
    13    (c)  the  reason for the act did not include a documented or otherwise
    14  verified assessment  or  evaluation  of  members  of  both  the  favored
    15  protected  class and the unfavored protected class or the reason for the
    16  act did not justify a person of one protected class being favored over a
    17  person of another protected class.
    18    28. It shall be an unlawful discriminatory practice for  a  person  or
    19  agency  to  engage  in acts of disparate impact. Unlawful discriminatory
    20  practice by disparate impact occurs when such person or agency:
    21    (a) identifies a specific policy or practice that  favors  or  assigns
    22  advantage to one protected class over another protected class;
    23    (b)  establishes adversity or harm to a protected class or a member of
    24  a protected class;
    25    (c) establishes a significant disparity between  a  favored  protected
    26  class and an unfavored protected class; and
    27    (d)  establishes  a  causal  connection,  that  the policy or practice
    28  reasonably or logically led, wholly or in  part,  to  the  adversity  or
    29  harm.
    30    29.  It  shall  be an unlawful discriminatory practice for a person or
    31  agency to engage in acts of unlawful discriminatory  practice  by  mali-
    32  cious treatment. Unlawful discriminatory practice by malicious treatment
    33  occurs when:
    34    (a)  an actor's usage of derogatory or demeaning language related to a
    35  protected status of the complainant or executing a demeaning act against
    36  the protected status of the complainant  before,  during  or  after  the
    37  alleged  act of discrimination within a time equal to the lawful statute
    38  of limitations for filing a civil suit against the act;
    39    (b) adversity or harm as a result of such language or  act  is  estab-
    40  lished.
    41    (c) causal connection, that the act reasonably led, wholly or in part,
    42  to adversity or harm is established.
    43    30. It shall be an unlawful discriminatory practice for a public agen-
    44  cy  to engage in a contractual agreement in an amount greater than fifty
    45  thousand dollars without a documented competitive process that  provided
    46  equal opportunity to persons without favor or advantage to any protected
    47  class.
    48    31. It shall be an unlawful discriminatory practice for an employer to
    49  give  employment  opportunity to a candidate of one protected class that
    50  does not meet a statutory or published minimum or required qualification
    51  while denying employment opportunity  to  a  candidate  of  a  different
    52  protected  class  that  meets the same statutory or published minimum or
    53  required qualification.
    54    32. It shall be an unlawful discriminatory practice for a  person  who
    55  receives a complaint of discrimination or retaliation to refuse to adju-

        A. 814                              3
 
     1  dicate  the  complaint  or  otherwise  address  the complaint for relief
     2  because it is a complaint claiming discrimination or retaliation.
     3    33. The following acts and only the following acts shall be exemptions
     4  and  exceptions  to  the  provisions of this article and any of the laws
     5  that said article supports and protects:
     6    (a) Acts that set forth in  writing  an  intention  to  provide  equal
     7  opportunity to a protected class that has historically been denied equal
     8  opportunity.
     9    (b)  Acts  that  set forth in writing an intention to correct unlawful
    10  discrimination for or against a protected class.
    11    (c) Acts that for which no possible inference  of  unlawful  discrimi-
    12  nation  can  be  established  by disparate treatment evidence, disparate
    13  impact evidence, malicious treatment evidence or  any  other  direct  or
    14  indirect evidence.
    15    §  3.  Section 292 of the executive law is amended by adding three new
    16  subdivisions 42, 43 and 44 to read as follows:
    17    42. The term "real occupational qualification", means  the  possession
    18  of a governmentally or privately issued certification, license, diploma,
    19  or degree, or a scored examination or assessment of knowledge, skills or
    20  abilities required for the employment position.
    21    43.  The  term  "lawful  protected  status oriented contract" shall be
    22  defined as a legally binding agreement between two parties to compensate
    23  an individual for products or services related directly to that individ-
    24  ual's protected status or to compensate a company because of the  compa-
    25  ny's  status  as a minority or woman-owned enterprise, including but not
    26  limited to employing test subjects by race or color because of scientif-
    27  ic studies on the effects of suntan lotion, employing physical education
    28  teachers by gender because of locker room supervision, employing a lead-
    29  er of a religious institution by creed because of  religious  integrity,
    30  and  purchasing  from  a  minority-owned business enterprise or a woman-
    31  owned business enterprise in an effort to comply with  local,  state  or
    32  federal  laws  or  to  diversify  spending portfolios fairly amongst the
    33  citizenry.
    34    44. The term "significant disparity" shall include but not be  limited
    35  to the following:
    36    (a) A probability of occurrence less than one-half of one percent.
    37    (b)  A  protected class being advantaged or disadvantaged with a ratio
    38  beyond 4:1 or 1:4 within protected class populations for a specific  and
    39  reasonable  municipal  area  utilizing  mutually agreed upon statistics,
    40  relevant data supplied by the municipality, or the  most  recent  census
    41  data for said municipality.
    42    (c)  The  combination  of  a  probability  of occurrence less than one
    43  percent and a ratio of disproportionality beyond 1:8 or 8:1 as set forth
    44  in paragraph (b) of this subdivision.
    45    § 4. The education law is amended by adding a new  section  3009-a  to
    46  read as follows:
    47    §  3009-a. Hiring outstanding professionals in education. 1. No person
    48  shall be appointed to a certificated position in a public school  unless
    49  the  position  was publicly advertised for a minimum of fourteen consec-
    50  utive days within the period of one hundred eighty  days  prior  to  the
    51  date  of  appointment. The fourteen consecutive days may only be reduced
    52  to seven consecutive days to appoint  a  classroom  teacher  within  the
    53  fourteen  days prior to the first day of student attendance in August or
    54  September.
    55    2. No person shall be appointed to a certificated position in a public
    56  school without having applied for the certificated position in  response

        A. 814                              4
 
     1  to  a public advertisement of the certificated position on or before the
     2  published deadline.
     3    3.  No person shall be appointed to a certificated position prior to a
     4  school-conducted examination or scored assessment of fitness of at least
     5  three different persons for the  specific  certificated  position.  Such
     6  examinations or scored assessments of fitness may be, but are not limit-
     7  ed  to,  one-to-one  interviews, panel interviews, content area examina-
     8  tions, writing samples, demonstration lessons, and sample  lesson  plans
     9  with  signed  records  of  such examinations or scored assessments along
    10  with applicant documents and demographic date being physically filed for
    11  a minimum of seven years and  electronically  filed  permanently.    The
    12  three  different  persons may be reduced to a competitive examination of
    13  two persons or to an examination of one person if and only if less  than
    14  three  persons apply to a public advertisement as defined in subdivision
    15  nine of this section.
    16    4. No person shall be appointed to  a  certificated  position  without
    17  possessing  the  requisite  certificate  for  the  certificated position
    18  according to commissioner regulations.
    19    5. No person shall be appointed to a certificated position in a public
    20  school because of affinity for or animus against a race,  creed,  color,
    21  national origin, sex, marital status, sexual orientation, gender identi-
    22  ty  or expression, or disability, as such term is defined in section two
    23  hundred ninety-two of the executive law, except when  such  actions  are
    24  taken  to  correct  the  impacts of a documented unlawful discriminatory
    25  practice.
    26    6. The notice of employment opportunity for  a  certificated  position
    27  located in subdivision one of this section shall be deemed a civil right
    28  for  persons  who hold the requisite certification, according to commis-
    29  sioner regulations, for the certificated position.
    30    7.   Appointments that promote temporary  employees  to  positions  as
    31  probationary  employees  without  conducting  a  requirement  herein are
    32  strictly prohibited.
    33    8. No person shall be appointed to  a  certificated  position  without
    34  conducting  a requirement of this section except as an acting or interim
    35  appointment because of an unforeseen resignation, incapacitation,  death
    36  or dutiful reassignment of an employee. Such appointments are limited to
    37  one year in duration and may not be reappointed, renewed or extended.
    38    9.  For the purposes of this section, "publicly advertised" shall mean
    39  solicited in writing without intentional concealment from any person.
    40    10.   Persons appointed  to  certificated  positions  outside  of  the
    41  requirements  set  forth  in  this  section shall be unqualified for the
    42  appointed certificated position for all purposes of this chapter.
    43    11. Any person who was qualified for and not appointed  to  a  certif-
    44  icated  position has a cause of action for resulting damages against the
    45  school, officers or employees that engaged in any violation of  subdivi-
    46  sions one through eight of this section.
    47    §  5.  Section  3009  of  the education law is amended by adding a new
    48  subdivision 3 to read as follows:
    49    3.  For the purposes of this section and section three thousand ten of
    50  this chapter, an "unqualified teacher" for a public school  certificated
    51  position  shall  be  any  person who does not or did not meet all of the
    52  requirements to be appointed to said public  school  certificated  posi-
    53  tion.
    54    § 6. The education law is amended by adding a new section 3039 to read
    55  as follows:

        A. 814                              5
 
     1    §  3039.  Discrimination  based  on  affinity  for or animus against a
     2  protected class is prohibited. Notwithstanding any provision of  law  to
     3  the  contrary,  no board of education in any city, union free, common or
     4  central school district in this state shall hereafter prohibit, prevent,
     5  disqualify  or  discriminate  against  any  person who is physically and
     6  mentally qualified from competing, participating, or registering for  an
     7  examination  for  or from qualifying for, a position licensed or certif-
     8  icated by the department, or be excluded from and denied  equal  employ-
     9  ment opportunity, or penalized in a final rating by reason of his or her
    10  membership  in  a  protected class or retaliated against after he or she
    11  formally alleged discrimination. Any such rule, requirement, resolution,
    12  regulation, penalization, exclusion, denial, discrimination  or  retali-
    13  ation of such board or its employees shall be void. Nothing contained in
    14  this  section shall prevent such board from adopting reasonable require-
    15  ments for positions, except where such requirements for  such  positions
    16  are  already  limited  and  prescribed by law. Nothing contained in this
    17  section shall prevent action to correct the impacts of documented unlaw-
    18  ful discriminatory practice.
    19    § 7. Paragraph (a) of subdivision 1 of section 296  of  the  executive
    20  law,  as separately amended by chapters 202 and 748 of the laws of 2022,
    21  is amended to read as follows:
    22    (a) For an employer or licensing agency[, because of an  individual's]
    23  to refuse to hire or employ or to bar or to discharge from employment an
    24  individual,  or to discriminate against an individual in compensation or
    25  in terms, conditions or privileges of employment, or to deny an individ-
    26  ual the opportunity to obtain employment without discrimination, because
    27  of malicious treatment, disparate treatment or disparate impact  accord-
    28  ing  to  age,  race, creed, color, national origin, citizenship or immi-
    29  gration status, sexual orientation, gender identity or expression, mili-
    30  tary status,  sex,  disability,  predisposing  genetic  characteristics,
    31  familial  status,  marital  status,  or  status  as a victim of domestic
    32  violence, or previous condition of servitude to refuse to hire or employ
    33  or to bar or to discharge from employment such individual or to discrim-
    34  inate against such individual in compensation or in terms, conditions or
    35  privileges of employment.
    36    § 8. Subdivision 2 of section 40-c of the civil rights law, as amended
    37  by chapter 8 of the laws of 2019, is amended to read as follows:
    38    2. No person shall, because  of  age,  race,  creed,  color,  national
    39  origin,  sex,  marital  status,  sexual  orientation, gender identity or
    40  expression,  predisposing  genetic  characteristics,  familial   status,
    41  status  as  a  victim of domestic violence, previous condition of servi-
    42  tude, or disability, as such term is  defined  in  section  two  hundred
    43  ninety-two  of  the executive law, be subjected to any discrimination in
    44  his or her civil rights, [or] to any harassment, as defined  in  section
    45  240.25  of the penal law, or to any form of victimization, as defined in
    46  articles one hundred twenty, two hundred forty, two  hundred  forty-one,
    47  two  hundred  forty-two  or four hundred eighty-five of the penal law in
    48  the exercise thereof, by any other person or by any firm, corporation or
    49  institution, or by the state or any agency or subdivision of the state.
    50    § 9. Section 40-d of the civil rights law, as amended by  chapter  191
    51  of the laws of 1982, is amended to read as follows:
    52    § 40-d. Penalty for violation. Any person who shall violate any of the
    53  provisions  of  the  foregoing  section, or subdivision three of section
    54  240.30 or section 240.31 of the penal law, or who shall  aid  or  incite
    55  the  violation  of  any  of  said  provisions  shall  for each and every
    56  violation thereof be liable to a penalty of not less than one  [hundred]

        A. 814                              6
 
     1  thousand  dollars  nor  more than five [hundred] thousand dollars, to be
     2  recovered by the person aggrieved thereby  in  any  court  of  competent
     3  jurisdiction in the county in which the defendant shall reside. In addi-
     4  tion,  any person who shall violate any of the provisions of the forego-
     5  ing section shall be deemed guilty of  a  class  A  misdemeanor.  At  or
     6  before the commencement of any action under this section, notice thereof
     7  shall be served upon the attorney general.
     8    § 10. Subdivision 2-b of section 3813 of the education law, as amended
     9  by chapter 474 of the laws of 1996, is amended to read as follows:
    10    2-b.  Except  as  provided  in  subdivision  two  of this section and,
    11  notwithstanding any other provision of law providing a longer period  of
    12  time  in which to commence an action or special proceeding, no action or
    13  special proceeding shall be commenced against any  entity  specified  in
    14  subdivision  one  of  this section more than one year after the cause of
    15  action arose; provided, however, that nothing contained in this subdivi-
    16  sion shall pertain to civil rights or human rights causes of  action  or
    17  be  deemed  to  modify  or  supersede  any provision of law specifying a
    18  shorter period of time  in  which  to  commence  an  action  or  special
    19  proceeding  against any such entity. For purposes of this subdivision, a
    20  cause of action against the school district of residence for  reimburse-
    21  ment  of  tuition costs incurred pursuant to subdivision four of section
    22  thirty-two hundred two of this chapter by the school district in which a
    23  family home at board is located shall arise as of the date  payment  for
    24  the amount claimed was denied.
    25    §  11.  The  executive law is amended by adding a new section 297-a to
    26  read as follows:
    27    § 297-a. Tolling. Statutes of limitations for filing causes of  action
    28  according to this article shall be tolled for the length of time a civil
    29  rights  or  human  rights  administrative  agency investigates and makes
    30  conclusions about alleged violations of this article, measured from  the
    31  day  a  complaint  was filed in writing to the day of the conclusion was
    32  issued in writing.
    33    § 12. The civil rights law is amended by adding two  new  sections  49
    34  and 49-a to read as follows:
    35    §  49.  Cause  of  action.  Any  person  who is qualified for a public
    36  contract who has been  deprived  of  equal  opportunity  to  the  public
    37  contract shall have a cause of action based on the deprivation thereof.
    38    §  49-a.  Tolling. Statutes of limitations for filing causes of action
    39  according to article four of this chapter shall be tolled for the length
    40  of time a civil rights or human rights  administrative  agency  investi-
    41  gates  and makes conclusions about alleged violations of article four of
    42  this chapter, measured from the day a complaint was filed in writing  to
    43  the day of the conclusion was issued in writing.
    44    § 13. This act shall take effect immediately.
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