Requires the state urban development corporation and each of its subsidiaries to take affirmative action so as to assure that business enterprises owned and operated by women be given an equal opportunity to participate in the planning, construction and operation of projects of the corporation or its subsidiaries; provides that the UDC shall from time to time gather information and make written findings, if warranted, with respect to areas of the state where its projects are located, concerning the effects of past discrimination against women and business enterprises owned and operated by women; provides that the UDC shall adopt, in writing and implement such actions to achieve and maintain equal employment and business opportunity as it may reasonably deem necessary and appropriate.
STATE OF NEW YORK
________________________________________________________________________
2965
2013-2014 Regular Sessions
IN SENATE
January 28, 2013
___________
Introduced by Sen. GIPSON -- read twice and ordered printed, and when
printed to be committed to the Committee on Corporations, Authorities
and Commissions
AN ACT to amend the New York state urban development corporation act, in
relation to certain employment discrimination
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. It is hereby found and declared that
2 the state has had a leadership role in maximizing equal opportunity in
3 employment for all its citizens, but that in many communities in the
4 state, because of past sex discrimination, women and women-owned busi-
5 ness enterprises do not have such equal opportunity.
6 It is further found and declared that as a result of such past
7 discrimination, many women and women-owned business enterprises do not
8 enjoy full opportunity to participate in and contribute to the state's
9 economy, or to obtain the experience necessary to become more productive
10 contributors to the economy.
11 It is further found and declared that the lack of opportunity to
12 participate in public contracts tends to decrease the pool of available
13 labor, thereby adversely affecting the cost and progress of such public
14 contracts.
15 It is further found and declared that the state has a compelling
16 interest in eradicating the effects of such past discrimination, and
17 that well chosen efforts at eradication result in a gain which substan-
18 tially outweighs any detrimental effects.
19 It is further found and declared that the patterns, causes, effects
20 and victims of such past discrimination have varied and do vary widely
21 among communities, occupations and industries, and that no one approach
22 to remedying the effects of this discrimination will be most effective
23 in all circumstances, but rather that, where feasible, corrective
24 programs should be tailored to the particular situation.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02861-01-3
S. 2965 2
1 It is further found and declared that under some circumstances equal
2 opportunity can be afforded to women and women-owned business enter-
3 prises, only by the temporary use of preferential methods such as numer-
4 ical goals for participation by women and women-owned enterprises, and
5 that such methods can and should be carefully chosen, using statistical
6 and other information where available, so that the methods are employed
7 only where they are considered necessary to achieve equal opportunity,
8 and have the least practicable adverse impact on men and men-owned busi-
9 nesses.
10 It is further found and declared that the New York state urban devel-
11 opment corporation and its subsidiaries have developed extensive know-
12 ledge and expertise in the areas of manpower development and training,
13 urban blight and revitalization, affirmative action, the letting of
14 public contracts, the construction of public projects, and the statis-
15 tical analysis of employment and economic patterns throughout the state.
16 It is further found and declared that the New York state urban devel-
17 opment corporation and its subsidiaries have the requisite knowledge and
18 expertise to examine employment and economic patterns in particular
19 communities, occupations and industries, and to ascertain whether the
20 effects of past discrimination persist, and if so, how they might best
21 be remedied.
22 It is further found and declared that affirmative action is consistent
23 with, and a necessary component of fulfilling, the New York state urban
24 development corporation's mission of revitalizing the blighted urban
25 areas and the economy of the state, and of improving the conditions of
26 the low income residents of the state.
27 Therefore, it is hereby found and declared that it is in the public
28 interest and necessary and desirable that the New York state urban
29 development corporation, for itself and for its subsidiaries, develop
30 and implement affirmative action programs where and as necessary for
31 their projects, applicable to the corporation and its subsidiaries, and
32 their projects and activities, and their contractors, subcontractors,
33 consultants, vendees and lessees, based where necessary upon analysis of
34 the circumstances in the relevant communities, occupations and indus-
35 tries, with the goal of ensuring equal opportunity for women and busi-
36 ness enterprises actually owned and operated by women.
37 § 2. This act shall be deemed an exercise of the police power and the
38 procurement power of the state, and in fulfillment of the provisions of
39 the constitution of the state concerning civil rights.
40 § 3. Section 4 of section 1 of chapter 174 of the laws of 1968,
41 constituting the New York state urban development corporation act, is
42 amended by adding a new subdivision 12 to read as follows:
43 (12) The corporation and each of its subsidiaries, whether created
44 specially by statute or otherwise, shall take affirmative action in
45 working with construction firms, contractors, subcontractors, consult-
46 ants and other firms, to the end that women and business enterprises
47 owned and operated by women, shall be afforded equal opportunity to
48 participate in the planning, construction and operation of projects of
49 the corporation and its subsidiaries, and in all other activities of the
50 corporation and its subsidiaries. Toward this end: (a) The corporation
51 shall from time to time gather information and make written findings, if
52 warranted, with respect to the areas of the state where its projects are
53 located, concerning the effects of any past discrimination against women
54 and business enterprises owned and operated by women.
55 (b) Such findings may, but need not be based, in whole or in part,
56 upon statistics indicating that certain women or business enterprises
S. 2965 3
1 owned and operated by women have a disproportionately low participation
2 in relevant occupations or industries in the area, relative to their
3 proportion in the relevant population or labor force.
4 (c) The corporation shall adopt, in writing, and implement such
5 actions to achieve and maintain equal employment and business opportu-
6 nity as it may reasonably deem necessary and appropriate. In appropriate
7 instances, these actions may include, without limitation, affirmative
8 efforts at recruitment, counselling, training, and community liaison,
9 and when findings of discrimination have been made, and notwithstanding
10 any other provision of state or local law, the temporary use of attain-
11 able preferential methods to ensure that women and business enterprises
12 actually owned and operated by women may participate fully in the plan-
13 ning, construction and operation of the applicable project, and in the
14 occupations and industries which participate in such project. As used in
15 the preceding sentence, the term "owned" means bona fide ownership of at
16 least fifty per centum of the business enterprise, and the term "oper-
17 ated" means the control of the management and daily operations of such
18 business enterprise. No method selected shall mandate the discharge of
19 any worker because of his or her sex. Where appropriate because of
20 differing circumstances, the corrective actions chosen may differ among
21 areas and projects, and within projects among occupations, industries,
22 and contracts. Nothing in this subdivision shall be deemed to require
23 the hiring of unqualified workers, or to authorize the awarding of
24 contracts to enterprises that are not responsible and reliable and qual-
25 ified to perform the work required.
26 (d) In determining whether a bidder or proposed contractor for any
27 type of work let or services procured by the corporation or its subsid-
28 iaries is responsible, the corporation and its subsidiaries shall
29 consider (but need not limit their consideration to) the ability and
30 willingness of such bidder or proposed contractor to provide, and to
31 commit to provide, for participation of women and business enterprises
32 actually owned and operated by women, to the extent determined necessary
33 pursuant to this subdivision, and in accordance with the procedures
34 established herein.
35 (e) The corporation and its subsidiaries, if necessary or convenient
36 to achieve the purposes of this subdivision, may impose through
37 contract, lease or conveyance provisions or otherwise, the affirmative
38 action measures undertaken pursuant to this subdivision upon any persons
39 or entities that plan, construct or operate its projects, including but
40 not limited to those projects whose construction is complete, and wheth-
41 er or not the corporation or any of its subsidiaries retains a real
42 property interest in any portion of the project.
43 (f) The corporation in its annual report shall fully describe its
44 activities pursuant to this subdivision, so that the legislature may
45 from time to time reassess its delegation to the corporation and its
46 subsidiaries of fact-finding and implementing responsibilities concern-
47 ing affirmative action.
48 (g) The corporation may from time to time promulgate procedures, regu-
49 lations and interpretations necessary or convenient to effect the
50 purposes of this subdivision. Such promulgations shall not be deemed to
51 be "rules" for purposes of chapter 167 of the laws of 1975, as amended.
52 § 4. If any provisions of this act, or the application thereof to any
53 person or circumstances shall be adjudged by any court of competent
54 jurisdiction to be invalid or unenforceable, such judgment shall not
55 affect, impair or invalidate the remainder of this act or the applica-
56 tion of such provision to any other person or circumstance, but shall be
S. 2965 4
1 confined in its operation to the provision, person and circumstance
2 directly involved in the controversy in which such judgment shall have
3 been rendered.
4 § 5. This act shall take effect immediately.
