Relates to discrimination in the use of employment tests and selection procedures; provides that employers that utilize a test or other selection procedure for purposes of hiring or promotion shall select and administer the test or other selection procedure to ensure that it does not have the effect of discrimination because of an individual's race, ethnic group, or sex.
STATE OF NEW YORK
________________________________________________________________________
7989
2019-2020 Regular Sessions
IN ASSEMBLY
May 30, 2019
___________
Introduced by M. of A. JOYNER -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to discrimination in the use
of employment tests and selection procedures
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 215-d to
2 read as follows:
3 § 215-d. Employment tests and selection procedures. 1. If an employer
4 utilizes a test or other selection procedure for purposes of hiring or
5 promotion, the employer shall select and administer the test or other
6 selection procedure so as best to ensure that, when administered to
7 applicants, the test or selection procedure is not designed, intended or
8 used to discriminate, and does not have the effect of discriminating,
9 because of an individual's race, ethnic group, or sex. In selecting or
10 administering such test or selection procedure, the employer shall
11 investigate alternative tests and selection procedures and shall select
12 the alternative that poses the lowest risk of discriminatory impact.
13 2. For purposes of subdivision one of this section and paragraph (a)
14 of subdivision one of section two hundred ninety-six of the executive
15 law, a test or other selection procedure used by an employer for
16 purposes of hiring or promotion shall be deemed not to discriminate on
17 the basis of a finding of adverse impact against a specific protected
18 class if, for the specific protected class:
19 (a) the test or selection procedure utilizes pre-audited assessment
20 technology that, upon use, resulted in an increase in the hiring or
21 promotion of that protected class by five percent or greater as compared
22 to the pre-implementation workforce composition of the protected class;
23 (b) the employer conducts an annual examination of the pre-audited
24 assessment technology to determine and document whether the technology
25 had an adverse impact for the protected class during the audited year;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11934-01-9
A. 7989 2
1 (c) the annual examination demonstrates that the pre-audited assess-
2 ment technology:
3 (i) resulted in an increase in the hiring or promotion of the
4 protected class by five percent or greater during the examined year as
5 compared to the pre-implementation workforce composition of the
6 protected class; or
7 (ii) resulted in no adverse impact on the protected class; and
8 (d) the employer ceases to use any version of the pre-audited assess-
9 ment technology that does not meet the requirements of paragraph (c) of
10 this subdivision.
11 3. Subdivision two of this section shall not impact any other defense
12 an employer may have to claims of employment discrimination under any
13 other provision of law.
14 4. For purposes of this section:
15 (a) "Pre-audited assessment technology" shall mean a test or other
16 selection procedure used by an employer for purposes of hiring or
17 promotion that:
18 (i) prior to use by the employer, was the subject of a validity study
19 conducted by the employer that conforms to the requirements for validity
20 studies set forth in 29 C.F.R. section 1607.5; and
21 (ii) prior to use by the employer, was examined and demonstrated no
22 probability for adverse impact based on race, color, national origin, or
23 sex.
24 (b) "Adverse impact" shall be indicated where a selection rate for any
25 race, color, national origin, or sex constituting two percent or more of
26 the total applicant population is less than four-fifths or eighty
27 percent of the rate for the group with the highest selection rate and
28 where such difference in selection rates between such groups is statis-
29 tically significant.
30 (c) "Pre-implementation workforce composition" means the demographic
31 composition of a protected class as a percentage of the employer's over-
32 all workforce that existed immediately prior to implementation of a
33 pre-audited assessment technology.
34 (d) "Protected class" shall mean race, ethnic group, or sex.
35 (e) "Applicant" shall mean any individual as to whom the following
36 four criteria are satisfied:
37 (i) the individual submits an expression of interest in employment or
38 promotion;
39 (ii) the employer considers the individual for employment in or
40 promotion to a particular position;
41 (iii) the individual's expression of interest indicates the individual
42 possesses the basic qualifications for the position; and
43 (iv) the individual at no point in the selection process, prior to
44 receiving an offer or promotion, removes himself or herself from further
45 consideration or otherwise indicates that he or she is no longer inter-
46 ested in the position.
47 § 2. This act shall take effect immediately.