N.Y. Executive Law § 296: Unlawful discriminatory practices

§ 296. Unlawful discriminatory practices. 1. It shall be an unlawful

discriminatory practice:

(a) For an employer or licensing agency, because of an individual's

age, race, creed, color, national origin, citizenship or immigration

status, sexual orientation, gender identity or expression, military

status, sex, disability, predisposing genetic characteristics, familial

status, marital status, or status as a victim of domestic violence, to

refuse to hire or employ or to bar or to discharge from employment such

individual or to discriminate against such individual in compensation or

in terms, conditions or privileges of employment.

(b) For an employment agency to discriminate against any individual

because of age, race, creed, color, national origin, citizenship or

immigration status, sexual orientation, gender identity or expression,

military status, sex, disability, predisposing genetic characteristics,

familial status, marital status, or status as a victim of domestic

violence, in receiving, classifying, disposing or otherwise acting upon

applications for its services or in referring an applicant or applicants

to an employer or employers.

(c) For a labor organization, because of the age, race, creed, color,

national origin, citizenship or immigration status, sexual orientation,

gender identity or expression, military status, sex, disability,

predisposing genetic characteristics, familial status, marital status,

or status as a victim of domestic violence, of any individual, to

exclude or to expel from its membership such individual or to

discriminate in any way against any of its members or against any

employer or any individual employed by an employer.

(d) For any employer or employment agency to print or circulate or

cause to be printed or circulated any statement, advertisement or

publication, or to use any form of application for employment or to make

any inquiry in connection with prospective employment, which expresses

directly or indirectly, any limitation, specification or discrimination

as to age, race, creed, color, national origin, citizenship or

immigration status, sexual orientation, gender identity or expression,

military status, sex, disability, predisposing genetic characteristics,

familial status, marital status, or status as a victim of domestic

violence, or any intent to make any such limitation, specification or

discrimination, unless based upon a bona fide occupational

qualification; provided, however, that neither this paragraph nor any

provision of this chapter or other law shall be construed to prohibit

the department of civil service or the department of personnel of any

city containing more than one county from requesting information from

applicants for civil service examinations concerning any of the

aforementioned characteristics, other than sexual orientation, for the

purpose of conducting studies to identify and resolve possible problems

in recruitment and testing of members of minority groups to ensure the

fairest possible and equal opportunities for employment in the civil

service for all persons, regardless of age, race, creed, color, national

origin, citizenship or immigration status, sexual orientation or gender

identity or expression, military status, sex, disability, predisposing

genetic characteristics, familial status, or marital status.

(e) For any employer, labor organization or employment agency to

discharge, expel or otherwise discriminate against any person because he

or she has opposed any practices forbidden under this article or because

he or she has filed a complaint, testified or assisted in any proceeding

under this article.

(f) Nothing in this subdivision shall affect any restrictions upon the

activities of persons licensed by the state liquor authority with

respect to persons under twenty-one years of age.

(g) For an employer to compel an employee who is pregnant to take a

leave of absence, unless the employee is prevented by such pregnancy

from performing the activities involved in the job or occupation in a

reasonable manner.

(h) For an employer, licensing agency, employment agency or labor

organization to subject any individual to harassment because of an

individual's age, race, creed, color, national origin, citizenship or

immigration status, sexual orientation, gender identity or expression,

military status, sex, disability, predisposing genetic characteristics,

familial status, marital status, status as a victim of domestic

violence, or because the individual has opposed any practices forbidden

under this article or because the individual has filed a complaint,

testified or assisted in any proceeding under this article, regardless

of whether such harassment would be considered severe or pervasive under

precedent applied to harassment claims. Such harassment is an unlawful

discriminatory practice when it subjects an individual to inferior

terms, conditions or privileges of employment because of the

individual's membership in one or more of these protected categories.

The fact that such individual did not make a complaint about the

harassment to such employer, licensing agency, employment agency or

labor organization shall not be determinative of whether such employer,

licensing agency, employment agency or labor organization shall be

liable. Nothing in this section shall imply that an employee must

demonstrate the existence of an individual to whom the employee's

treatment must be compared. It shall be an affirmative defense to

liability under this subdivision that the harassing conduct does not

rise above the level of what a reasonable victim of discrimination with

the same protected characteristic or characteristics would consider

petty slights or trivial inconveniences.

1-a. It shall be an unlawful discriminatory practice for an employer,

labor organization, employment agency or any joint labor-management

committee controlling apprentice training programs:

(a) To select persons for an apprentice training program registered

with the state of New York on any basis other than their qualifications,

as determined by objective criteria which permit review;

(b) To deny to or withhold from any person because of race, creed,

color, national origin, citizenship or immigration status, sexual

orientation, gender identity or expression, military status, sex, age,

disability, familial status, marital status, or status as a victim of

domestic violence, the right to be admitted to or participate in a

guidance program, an apprenticeship training program, on-the-job

training program, executive training program, or other occupational

training or retraining program;

(c) To discriminate against any person in his or her pursuit of such

programs or to discriminate against such a person in the terms,

conditions or privileges of such programs because of race, creed, color,

national origin, citizenship or immigration status, sexual orientation,

gender identity or expression, military status, sex, age, disability,

familial status, marital status, or status as a victim of domestic

violence;

(d) To print or circulate or cause to be printed or circulated any

statement, advertisement or publication, or to use any form of

application for such programs or to make any inquiry in connection with

such program which expresses, directly or indirectly, any limitation,

specification or discrimination as to race, creed, color, national

origin, citizenship or immigration status, sexual orientation, gender

identity or expression, military status, sex, age, disability, familial

status, marital status, or status as a victim of domestic violence, or

any intention to make any such limitation, specification or

discrimination, unless based on a bona fide occupational qualification.

2. (a) It shall be an unlawful discriminatory practice for any person,

being the owner, lessee, proprietor, manager, superintendent, agent or

employee of any place of public accommodation, resort or amusement,

because of the race, creed, color, national origin, citizenship or

immigration status, sexual orientation, gender identity or expression,

military status, sex, disability, marital status, or status as a victim

of domestic violence, of any person, directly or indirectly, to refuse,

withhold from or deny to such person any of the accommodations,

advantages, facilities or privileges thereof, including the extension of

credit, or, directly or indirectly, to publish, circulate, issue,

display, post or mail any written or printed communication, notice or

advertisement, to the effect that any of the accommodations, advantages,

facilities and privileges of any such place shall be refused, withheld

from or denied to any person on account of race, creed, color, national

origin, citizenship or immigration status, sexual orientation, gender

identity or expression, military status, sex, disability or marital

status, or that the patronage or custom thereat of any person of or

purporting to be of any particular race, creed, color, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, military status, sex or marital status, or having a

disability is unwelcome, objectionable or not acceptable, desired or

solicited.

(b) Nothing in this subdivision shall be construed to prevent the

barring of any person, because of the sex of such person, from places of

public accommodation, resort or amusement if the division grants an

exemption based on bona fide considerations of public policy; nor shall

this subdivision apply to the rental of rooms in a housing accommodation

which restricts such rental to individuals of one sex.

(c) For the purposes of paragraph (a) of this subdivision,

"discriminatory practice" includes:

(i) a refusal to make reasonable modifications in policies, practices,

or procedures, when such modifications are necessary to afford

facilities, privileges, advantages or accommodations to individuals with

disabilities, unless such person can demonstrate that making such

modifications would fundamentally alter the nature of such facilities,

privileges, advantages or accommodations;

(ii) a refusal to take such steps as may be necessary to ensure that

no individual with a disability is excluded or denied services because

of the absence of auxiliary aids and services, unless such person can

demonstrate that taking such steps would fundamentally alter the nature

of the facility, privilege, advantage or accommodation being offered or

would result in an undue burden;

(iii) a refusal to remove architectural barriers, and communication

barriers that are structural in nature, in existing facilities, and

transportation barriers in existing vehicles and rail passenger cars

used by an establishment for transporting individuals (not including

barriers that can only be removed through the retrofitting of vehicles

or rail passenger cars by the installation of a hydraulic or other

lift), where such removal is readily achievable;

(iv) where such person is a local or state government entity, a

refusal to remove architectural barriers, and communication barriers

that are structural in nature, in existing facilities, and

transportation barriers in existing vehicles and rail passenger cars

used by an establishment for transporting individuals (not including

barriers that can only be removed through the retrofitting of vehicles

or rail passenger cars by the installation of a hydraulic or other

lift), where such removal does not constitute an undue burden; except as

set forth in paragraph (e) of this subdivision; nothing in this section

would require a public entity to: necessarily make each of its existing

facilities accessible to and usable by individuals with disabilities;

take any action that would threaten or destroy the historical

significance of an historic property; or to make structural changes in

existing facilities where other methods are effective in achieving

compliance with this section; and

(v) where such person can demonstrate that the removal of a barrier

under subparagraph (iii) of this paragraph is not readily achievable, a

failure to make such facilities, privileges, advantages or

accommodations available through alternative methods if such methods are

readily achievable.

(d) For the purposes of this subdivision:

(i) "Readily achievable" means easily accomplishable and able to be

carried out without much difficulty or expense. In determining whether

an action is readily achievable, factors to be considered include:

(A) the nature and cost of the action needed under this subdivision;

(B) the overall financial resources of the facility or facilities

involved in the action; the number of persons employed at such facility;

the effect on expenses and resources or the impact otherwise of such

action upon the operation of the facility;

(C) the overall financial resources of the place of public

accommodation, resort or amusement; the overall size of the business of

such a place with respect to the number of its employees; the number,

type and location of its facilities; and

(D) the type of operation or operations of the place of public

accommodation, resort or amusement, including the composition, structure

and functions of the workforce of such place; the geographic

separateness, administrative or fiscal relationship of the facility or

facilities in question to such place.

(ii) "Auxiliary aids and services" include:

(A) qualified interpreters or other effective methods of making

aurally delivered materials available to individuals with hearing

impairments;

(B) qualified readers, taped texts or other effective methods of

making visually delivered materials available to individuals with visual

impairments;

(C) acquisition or modification of equipment or devices; and

(D) other similar services and actions.

(iii) "Undue burden" means significant difficulty or expense. In

determining whether an action would result in an undue burden, factors

to be considered shall include:

(A) The nature and cost of the action needed under this article;

(B) The overall financial resources of the site or sites involved in

the action; the number of persons employed at the site; the effect on

expenses and resources; legitimate safety requirements that are

necessary for safe operation, including crime prevention measures; or

the impact otherwise of the action upon the operation of the site;

(C) The geographic separateness, and the administrative or fiscal

relationship of the site or sites in question to any parent corporation

or entity;

(D) If applicable, the overall financial resources of any parent

corporation or entity; the overall size of the parent corporation or

entity with respect to the number of its employees; the number, type,

and location of its facilities; and

(E) If applicable, the type of operation or operations of any parent

corporation or entity, including the composition, structure, and

functions of the workforce of the parent corporation or entity.

(iv) "Reasonable modifications in policies, practices, procedures"

includes modification to permit the use of a service animal by a person

with a disability, consistent with federal regulations implementing the

Americans with Disabilities Act, Title III, at 28 CFR 36.302(c).

(e) Paragraphs (c) and (d) of this subdivision do not apply to any air

carrier, the National Railroad Passenger Corporation, or public

transportation facilities, vehicles or services owned, leased or

operated by the state, a county, city, town or village, or any agency

thereof, or by any public benefit corporation or authority.

2-a. It shall be an unlawful discriminatory practice for the owner,

lessee, sub-lessee, assignee, or managing agent of publicly-assisted

housing accommodations or other person having the right of ownership or

possession of or the right to rent or lease such accommodations:

(a) To refuse to sell, rent or lease or otherwise to deny to or

withhold from any person or group of persons such housing accommodations

because of the race, creed, color, disability, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, military status, age, sex, marital status, status as a

victim of domestic violence, lawful source of income or familial status

of such person or persons, or to represent that any housing

accommodation or land is not available for inspection, sale, rental or

lease when in fact it is so available.

(b) To discriminate against any person because of his or her race,

creed, color, disability, national origin, citizenship or immigration

status, sexual orientation, gender identity or expression, military

status, age, sex, marital status, status as a victim of domestic

violence, lawful source of income or familial status in the terms,

conditions or privileges of any publicly-assisted housing accommodations

or in the furnishing of facilities or services in connection therewith.

(c) To cause to be made any written or oral inquiry or record

concerning the race, creed, color, disability, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, membership in the reserve armed forces of the United

States or in the organized militia of the state, age, sex, marital

status, status as a victim of domestic violence, lawful source of income

or familial status of a person seeking to rent or lease any

publicly-assisted housing accommodation; provided, however, that nothing

in this subdivision shall prohibit a member of the reserve armed forces

of the United States or in the organized militia of the state from

voluntarily disclosing such membership.

(c-1) To print or circulate or cause to be printed or circulated any

statement, advertisement or publication, or to use any form of

application for the purchase, rental or lease of such housing

accommodation or to make any record or inquiry in connection with the

prospective purchase, rental or lease of such a housing accommodation

which expresses, directly or indirectly, any limitation, specification

or discrimination as to 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 status, or any intent to make any such limitation,

specification or discrimination.

(d) (1) To refuse to permit, at the expense of the person with a

disability, reasonable modifications of existing premises occupied or to

be occupied by the said person, if the modifications may be necessary to

afford the said person full enjoyment of the premises, in conformity

with the provisions of the New York state uniform fire prevention and

building code, except that, in the case of a rental, the landlord may,

where it is reasonable to do so, condition permission for a modification

on the renter's agreeing to restore the interior of the premises to the

condition that existed before the modification, reasonable wear and tear

excepted.

(2) To refuse to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary to

afford a person with a disability equal opportunity to use and enjoy a

dwelling, including the use of an animal as a reasonable accommodation

to alleviate symptoms or effects of a disability, and including

reasonable modification to common use portions of the dwelling, or

(3) In connection with the design and construction of covered

multi-family dwellings for first occupancy after March thirteenth,

nineteen hundred ninety-one, a failure to design and construct dwellings

in accordance with the accessibility requirements of the New York state

uniform fire prevention and building code, to provide that:

(i) The public use and common use portions of the dwellings are

readily accessible to and usable by disabled persons with disabilities;

(ii) All the doors are designed in accordance with the New York state

uniform fire prevention and building code to allow passage into and

within all premises and are sufficiently wide to allow passage by

persons in wheelchairs; and

(iii) All premises within covered multi-family dwelling units contain

an accessible route into and through the dwelling; light switches,

electrical outlets, thermostats, and other environmental controls are in

accessible locations; there are reinforcements in the bathroom walls to

allow later installation of grab bars; and there are usable kitchens and

bathrooms such that an individual in a wheelchair can maneuver about the

space, in conformity with the New York state uniform fire prevention and

building code.

(e) Nothing in this subdivision shall restrict the consideration of

age in the rental of publicly-assisted housing accommodations if the

division grants an exemption based on bona fide considerations of public

policy for the purpose of providing for the special needs of a

particular age group without the intent of prejudicing other age groups.

(f) Nothing in this subdivision shall be deemed to restrict the rental

of rooms in school or college dormitories to individuals of the same

sex.

3. (a) It shall be an unlawful discriminatory practice for an

employer, licensing agency, employment agency or labor organization to

refuse to provide reasonable accommodations to the known disabilities,

or pregnancy-related conditions, of an employee, prospective employee or

member in connection with a job or occupation sought or held or

participation in a training program.

(b) Nothing contained in this subdivision shall be construed to

require provision of accommodations which can be demonstrated to impose

an undue hardship on the operation of an employer's, licensing agency's,

employment agency's or labor organization's business, program or

enterprise.

In making such a demonstration with regard to undue hardship the

factors to be considered include:

(i) The overall size of the business, program or enterprise with

respect to the number of employees, number and type of facilities, and

size of budget;

(ii) The type of operation which the business, program or enterprise

is engaged in, including the composition and structure of the workforce;

and

(iii) The nature and cost of the accommodation needed.

(c) Nothing in this subdivision regarding "reasonable accommodation"

or in the chapter of the laws of two thousand fifteen which added this

paragraph shall alter, diminish, increase, or create new or additional

requirements to accommodate protected classes pursuant to this article

other than the additional requirements as explicitly set forth in such

chapter of the laws of two thousand fifteen.

(d) The employee must cooperate in providing medical or other

information that is necessary to verify the existence of the disability

or pregnancy-related condition, or that is necessary for consideration

of the accommodation. The employee has a right to have such medical

information kept confidential.

3-a. It shall be an unlawful discriminatory practice:

(a) For an employer or licensing agency to refuse to hire or employ or

license or to bar or to terminate from employment an individual eighteen

years of age or older, or to discriminate against such individual in

promotion, compensation or in terms, conditions, or privileges of

employment, because of such individual's age.

(b) For any employer, licensing agency or employment agency to print

or circulate or cause to be printed or circulated any statement,

advertisement or publication, or to use any form of application for

employment or to make any inquiry in connection with prospective

employment, which expresses, directly or indirectly, any limitation,

specification or discrimination on account of age respecting individuals

eighteen years of age or older, or any intent to make any such

limitation, specification, or discrimination.

(c) For any employer, licensing agency or employment agency to

discharge or otherwise discriminate against any person because he or she

has opposed any practices forbidden under this article or because he or

she has filed a complaint, testified or assisted in any proceeding under

this article.

(d) Notwithstanding any other provision of law, no employee shall be

subject to termination or retirement from employment on the basis of

age, except where age is a bona fide occupational qualification

reasonably necessary to the normal operation of a particular business,

where the differentiation is based on reasonable factors other than age,

or as otherwise specified in paragraphs (e) and (f) of this subdivision

or in article fourteen-A of the retirement and social security law.

(e) Nothing contained in this subdivision or in subdivision one of

this section shall be construed to prevent the compulsory retirement of

any employee who has attained sixty-five years of age, and who, for a

two-year period immediately before retirement, is employed in a bona

fide executive or a high policymaking position, if such employee is

entitled to an immediate nonforfeitable annual retirement benefit from a

pension, profit-sharing, savings, or deferred compensation plan, or any

combination of such plans, of the employer of such employee, which

equals, in the aggregate, at least forty-four thousand dollars; provided

that for the purposes of this paragraph only, the term "employer"

includes any employer as otherwise defined in this article but does not

include (i) the state of New York, (ii) a county, city, town, village or

any other political subdivision or civil division of the state, (iii) a

school district or any other governmental entity operating a public

school, college or university, (iv) a public improvement or special

district, (v) a public authority, commission or public benefit

corporation, or (vi) any other public corporation, agency,

instrumentality or unit of government which exercises governmental power

under the laws of the state. In applying the retirement benefit test of

this paragraph, if any such retirement benefit is in a form other than a

straight life annuity with no ancillary benefits, or if employees

contribute to any such plan or make rollover contributions, such benefit

shall be adjusted in accordance with rules and regulations promulgated

by the division, after an opportunity for public hearing, so that the

benefit is the equivalent of a straight life annuity with no ancillary

benefits under a plan to which employees do not contribute and under

which no rollover contributions are made.

(f) Nothing contained in this subdivision, in subdivision one of this

section or in article fourteen-A of the retirement and social security

law shall be construed to prevent the compulsory retirement of any

employee who has attained seventy years of age and is serving under a

contract for unlimited tenure, or a similar arrangement providing for

unlimited tenure, at a nonpublic institution of higher education. For

purposes of such subdivisions or article, the term "institution of

higher education" means an educational institution which (i) admits as

regular students only persons having a certificate of graduation from a

school providing secondary education, or the recognized equivalent of

such a certificate, (ii) is lawfully authorized to provide a program of

education beyond secondary education, and (iii) provides an educational

program for which it awards a bachelor's degree or provides not less

than a two-year program which is acceptable for full credit toward such

a degree.

(g) In the event of a conflict between the provisions of this

subdivision and the provisions of article fourteen-A of the retirement

and social security law, the provisions of article fourteen-A of such

law shall be controlling.

But nothing contained in this subdivision, in subdivision one of this

section or in article fourteen-A of the retirement and social security

law shall be construed to prevent the termination of the employment of

any person who, even upon the provision of reasonable accommodations, is

physically unable to perform his or her duties or to affect the

retirement policy or system of any employer where such policy or system

is not merely a subterfuge to evade the purposes of said subdivisions or

said article; nor shall anything in such subdivisions or such article be

deemed to preclude the varying of insurance coverages according to an

employee's age.

The provisions of this subdivision shall not affect any restriction

upon the activities of persons licensed by the state liquor authority

with respect to persons under twenty-one years of age.

3-b. It shall be an unlawful discriminatory practice for any real

estate broker, real estate salesperson or employee or agent thereof or

any other individual, corporation, partnership or organization for the

purpose of inducing a real estate transaction from which any such person

or any of its stockholders or members may benefit financially, to

represent that a change has occurred or will or may occur in the

composition with respect to race, creed, color, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, military status, sex, disability, marital status, status

as a victim of domestic violence, or familial status of the owners or

occupants in the block, neighborhood or area in which the real property

is located, and to represent, directly or indirectly, that this change

will or may result in undesirable consequences in the block,

neighborhood or area in which the real property is located, including

but not limited to the lowering of property values, an increase in

criminal or anti-social behavior, or a decline in the quality of schools

or other facilities.

4. It shall be an unlawful discriminatory practice for an educational

institution to deny the use of its facilities to any person otherwise

qualified, or to permit the harassment of any student or applicant, by

reason of his race, color, religion, disability, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, military status, sex, age, marital status, or status as a

victim of domestic violence, except that any such institution which

establishes or maintains a policy of educating persons of one sex

exclusively may admit students of only one sex.

5. (a) It shall be an unlawful discriminatory practice for the owner,

lessee, sub-lessee, assignee, or managing agent of, or other person

having the right to sell, rent or lease a housing accommodation,

constructed or to be constructed, or any agent or employee thereof:

(1) To refuse to sell, rent, lease or otherwise to deny to or withhold

from any person or group of persons such a housing accommodation because

of the 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 status of such

person or persons, or to represent that any housing accommodation or

land is not available for inspection, sale, rental or lease when in fact

it is so available.

(2) To discriminate against any person 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 status in the terms, conditions or privileges of

the sale, rental or lease of any such housing accommodation or in the

furnishing of facilities or services in connection therewith.

(3) To print or circulate or cause to be printed or circulated any

statement, advertisement or publication, or to use any form of

application for the purchase, rental or lease of such housing

accommodation or to make any record or inquiry in connection with the

prospective purchase, rental or lease of such a housing accommodation

which expresses, directly or indirectly, any limitation, specification

or discrimination as to 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 status, or any intent to make any such limitation,

specification or discrimination.

(4) (i) The provisions of subparagraphs one and two of this paragraph

shall not apply (1) to the rental of a housing accommodation in a

building which contains housing accommodations for not more than two

families living independently of each other, if the owner resides in one

of such housing accommodations, (2) to the restriction of the rental of

all rooms in a housing accommodation to individuals of the same sex or

(3) to the rental of a room or rooms in a housing accommodation, if such

rental is by the occupant of the housing accommodation or by the owner

of the housing accommodation and the owner resides in such housing

accommodation or (4) solely with respect to age and familial status to

the restriction of the sale, rental or lease of housing accommodations

exclusively to persons sixty-two years of age or older and the spouse of

any such person, or for housing intended and operated for occupancy by

at least one person fifty-five years of age or older per unit. In

determining whether housing is intended and operated for occupancy by

persons fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C.

3607 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended,

shall apply. However, such rental property shall no longer be exempt

from the provisions of subparagraphs one and two of this paragraph if

there is unlawful discriminatory conduct pursuant to subparagraph three

of this paragraph.

(ii) The provisions of subparagraphs one, two, and three of this

paragraph shall not apply (1) to the restriction of the rental of all

rooms in a housing accommodation to individuals of the same sex, (2) to

the rental of a room or rooms in a housing accommodation, if such rental

is by the occupant of the housing accommodation or by the owner of the

housing accommodation and the owner resides in such housing

accommodation, or (3) solely with respect to age and familial status to

the restriction of the sale, rental or lease of housing accommodations

exclusively to persons sixty-two years of age or older and the spouse of

any such person, or for housing intended and operated for occupancy by

at least one person fifty-five years of age or older per unit. In

determining whether housing is intended and operated for occupancy by

persons fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C.

3607 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended,

shall apply.

(b) It shall be an unlawful discriminatory practice for the owner,

lessee, sub-lessee, or managing agent of, or other person having the

right of ownership or possession of or the right to sell, rent or lease,

land or commercial space:

(1) To refuse to sell, rent, lease or otherwise deny to or withhold

from any person or group of persons land or commercial space because of

the 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, or familial status of such person or persons, or to

represent that any housing accommodation or land is not available for

inspection, sale, rental or lease when in fact it is so available;

(2) To discriminate against any person 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, or familial

status in the terms, conditions or privileges of the sale, rental or

lease of any such land or commercial space; or in the furnishing of

facilities or services in connection therewith;

(3) To print or circulate or cause to be printed or circulated any

statement, advertisement or publication, or to use any form of

application for the purchase, rental or lease of such land or commercial

space or to make any record or inquiry in connection with the

prospective purchase, rental or lease of such land or commercial space

which expresses, directly or indirectly, any limitation, specification

or discrimination as to 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, or familial status; or any

intent to make any such limitation, specification or discrimination.

(4) With respect to age and familial status, the provisions of this

paragraph shall not apply to the restriction of the sale, rental or

lease of land or commercial space exclusively to persons fifty-five

years of age or older and the spouse of any such person, or to the

restriction of the sale, rental or lease of land to be used for the

construction, or location of housing accommodations exclusively for

persons sixty-two years of age or older, or intended and operated for

occupancy by at least one person fifty-five years of age or older per

unit. In determining whether housing is intended and operated for

occupancy by persons fifty-five years of age or older, Sec. 807(b) (2)

(c) (42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988,

as amended, shall apply.

(c) It shall be an unlawful discriminatory practice for any real

estate broker, real estate salesperson or employee or agent thereof:

(1) To refuse to sell, rent or lease any housing accommodation, land

or commercial space to any person or group of persons or to refuse to

negotiate for the sale, rental or lease, of any housing accommodation,

land or commercial space to any person or group of persons because of

the 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 status of such

person or persons, or to represent that any housing accommodation, land

or commercial space is not available for inspection, sale, rental or

lease when in fact it is so available, or otherwise to deny or withhold

any housing accommodation, land or commercial space or any facilities of

any housing accommodation, land or commercial space from any person or

group of persons because of the race, creed, color, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, military status, sex, age, disability, marital status,

lawful source of income or familial status of such person or persons.

(2) To print or circulate or cause to be printed or circulated any

statement, advertisement or publication, or to use any form of

application for the purchase, rental or lease of any housing

accommodation, land or commercial space or to make any record or inquiry

in connection with the prospective purchase, rental or lease of any

housing accommodation, land or commercial space which expresses,

directly or indirectly, any limitation, specification, or discrimination

as to 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 status; or any

intent to make any such limitation, specification or discrimination.

(3) With respect to age and familial status, the provisions of this

paragraph shall not apply to the restriction of the sale, rental or

lease of any housing accommodation, land or commercial space exclusively

to persons fifty-five years of age or older and the spouse of any such

person, or to the restriction of the sale, rental or lease of any

housing accommodation or land to be used for the construction or

location of housing accommodations for persons sixty-two years of age or

older, or intended and operated for occupancy by at least one person

fifty-five years of age or older per unit. In determining whether

housing is intended and operated for occupancy by persons fifty-five

years of age or older, Sec. 807 (b) (2) (c) (42 U.S.C. 3607 (b) (2) (c))

of the federal Fair Housing Act of 1988, as amended, shall apply.

(d) It shall be an unlawful discriminatory practice for any real

estate board, because of the race, creed, color, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, military status, age, sex, disability, marital status,

status as a victim of domestic violence, lawful source of income or

familial status of any individual who is otherwise qualified for

membership, to exclude or expel such individual from membership, or to

discriminate against such individual in the terms, conditions and

privileges of membership in such board.

(e) It shall be an unlawful discriminatory practice for the owner,

proprietor or managing agent of, or other person having the right to

provide care and services in, a private proprietary nursing home,

convalescent home, or home for adults, or an intermediate care facility,

as defined in section two of the social services law, heretofore

constructed, or to be constructed, or any agent or employee thereof, to

refuse to provide services and care in such home or facility to any

individual or to discriminate against any individual in the terms,

conditions, and privileges of such services and care solely because such

individual is a blind person. For purposes of this paragraph, a "blind

person" shall mean a person who is registered as a blind person with the

commission for the visually handicapped and who meets the definition of

a "blind person" pursuant to section three of chapter four hundred

fifteen of the laws of nineteen hundred thirteen entitled "An act to

establish a state commission for improving the condition of the blind of

the state of New York, and making an appropriation therefor".

(f) The provisions of this subdivision, as they relate to age, shall

not apply to persons under the age of eighteen years.

(g) It shall be an unlawful discriminatory practice for any person

offering or providing housing accommodations, land or commercial space

as described in paragraphs (a), (b), and (c) of this subdivision to make

or cause to be made any written or oral inquiry or record concerning

membership of any person in the state organized militia in relation to

the purchase, rental or lease of such housing accommodation, land, or

commercial space, provided, however, that nothing in this subdivision

shall prohibit a member of the state organized militia from voluntarily

disclosing such membership.

(h) It shall be an unlawful discriminatory practice for any person to

discriminate against any individual in making real estate appraisal

services available or to base a real estate appraisal, estimate, or

opinion of value on the 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 status of either the prospective owners or occupants of the

real property, the present owners or occupants of the real property, or

the present owners or occupants of the real properties in the vicinity

of the property. Nothing in this section shall prohibit a real estate

appraiser from taking into consideration factors other than 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 status.

5-a. (a) For any case alleging housing discrimination under this

article, an unlawful discriminatory practice may be established by a

practice's discriminatory effect, even if such practice was not

motivated by a discriminatory intent. The practice may still be lawful

if supported by a legally sufficient justification, as defined in

paragraph (c) of this subdivision.

(b) For the purposes of this subdivision, a practice has 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.

(c) (1) A legally sufficient justification exists where the challenged

practice:

(i) is necessary to achieve one or more substantial, legitimate,

nondiscriminatory interests of the respondent; and

(ii) those interests could not be served by another practice that has

a less discriminatory effect.

(2) A legally sufficient justification shall be supported by evidence

and may not be hypothetical or speculative. The burdens of proof for

establishing each of the two elements of a legally sufficient

justification are set forth in paragraph (d) of this subdivision.

(d) (1) The complainant shall have the burden of proving that a

challenged practice caused or predictably will cause a discriminatory

effect.

(2) Once the complainant satisfies the burden of proof set forth in

subparagraph one of this paragraph, the respondent shall have the burden

of proving that the challenged practice is necessary to achieve one or

more substantial, legitimate, nondiscriminatory interests of the

respondent.

(3) If the respondent satisfies the burden of proof set forth in

subparagraph two of this paragraph, 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.

(e) A demonstration that a practice is supported by a legally

sufficient justification, as defined in paragraph (c) of this

subdivision, may not be used as a defense against a claim of intentional

discrimination.

(f) Nothing in this subdivision shall be construed or interpreted as

limiting, restricting, overriding, or supplanting any broader

interpretation of the discriminatory practices described in this article

or the availability of liability under this article.

5-b. (a) For any case alleging employment discrimination under this

article, an unlawful discriminatory practice may be established by a

practice's discriminatory effect, even if such practice was not

motivated by a discriminatory intent. The practice may still be lawful

if supported by a legally sufficient justification, as defined in

paragraph (c) of this subdivision.

(b) For the purposes of this subdivision, a practice has a

discriminatory effect where it actually or predictably results in a

disparate impact on a group of persons, because of their membership in a

class protected under this section.

(c) (i) A legally sufficient justification exists where the challenged

practice:

(A) is job related for the position in question and consistent with

business necessity; and

(B) that the business necessity could not be served by another

practice that has a less discriminatory effect.

(ii) A legally sufficient justification shall be supported by evidence

and may not be hypothetical or speculative. The burdens of proof for

establishing each of the two elements of a legally sufficient

justification are set forth in paragraph (d) of this subdivision.

(d) (i) The complainant shall have the burden of proving that a

challenged practice caused or predictably will cause a discriminatory

effect.

(ii) Once the complainant satisfies the burden of proof set forth in

subparagraph one of this paragraph, the respondent shall have the burden

of proving that the challenged practice is job related for the position

in question and consistent with business necessity.

(iii) If the respondent satisfies the burden of proof set forth in

subparagraph two of this paragraph, the complainant may still prevail

upon proving that the business necessity could be served by another

practice that has a less discriminatory effect.

(e) A demonstration that a practice is supported by a legally

sufficient justification, as defined in paragraph (c) of this

subdivision, may not be used as a defense against a claim of intentional

discrimination.

(f) Nothing in this subdivision shall be construed or interpreted as

limiting, restricting, overriding, or supplanting any broader

interpretation of the discriminatory practices described in this article

or the availability of liability under this article.

6. It shall be an unlawful discriminatory practice for any person to

aid, abet, incite, compel or coerce the doing of any of the acts

forbidden under this article, or to attempt to do so.

7. It shall be an unlawful discriminatory practice for any person

engaged in any activity to which this section applies to retaliate or

discriminate against any person because such person has (i) opposed any

practices forbidden under this article, (ii) filed a complaint,

testified, or assisted in any proceeding under this article, or (iii)

requested a reasonable accommodation under this article. Retaliation may

include, but is not limited to, disclosing an employee's personnel files

because such employee has (i) opposed any practices forbidden under this

article, (ii) filed a complaint, testified, or assisted in any

proceeding under this article, or (iii) requested a reasonable

accommodation under this article, except where such disclosure is made

in the course of commencing or responding to a complaint in any

proceeding under this article or any other civil or criminal action or

other judicial or administrative proceeding as permitted by applicable

law.

8. It shall be an unlawful discriminatory practice for any party to a

conciliation agreement made pursuant to section two hundred ninety-seven

of this article to violate the terms of such agreement.

9. (a) It shall be an unlawful discriminatory practice for any fire

department or fire company therein, through any member or members

thereof, officers, board of fire commissioners or other body or office

having power of appointment of volunteer firefighters, directly or

indirectly, by ritualistic practice, constitutional or by-law

prescription, by tacit agreement among its members, or otherwise, to

deny to any individual membership in any volunteer fire department or

fire company therein, or to expel or discriminate against any volunteer

member of a fire department or fire company therein, because of the

race, creed, color, national origin, citizenship or immigration status,

sexual orientation, gender identity or expression, military status, sex,

marital status, status as a victim of domestic violence, or familial

status, of such individual.

(b) Upon a complaint to the division, as provided for under

subdivision one of section two hundred ninety-seven of this article, and

in the event the commissioner finds that an unlawful discriminatory

practice has been engaged in, the board of fire commissioners or other

body or office having power of appointment of volunteer firefighters

shall be served with any order required, under subdivision four of

section two hundred ninety-seven of this article, to be served on any or

all respondents requiring such respondent or respondents to cease and

desist from such unlawful discriminatory practice and to take

affirmative action. Such board shall have the duty and power to appoint

as a volunteer firefighter, notwithstanding any other statute or

provision of law or by-law of any volunteer fire company, any individual

whom the commissioner has determined to be the subject of an unlawful

discriminatory practice under this subdivision. Unless such board has

been found to have engaged in an unlawful discriminatory practice,

service upon such board of such order shall not constitute such board or

its members as a respondent nor constitute a finding of an unlawful

discriminatory practice against such board or its members.

10. (a) It shall be an unlawful discriminatory practice for any

employer, or an employee or agent thereof, to impose upon a person as a

condition of obtaining or retaining employment, including opportunities

for promotion, advancement or transfers, any terms or conditions that

would require such person to violate or forego a sincerely held practice

of his or her religion, including but not limited to the observance of

any particular day or days or any portion thereof as a sabbath or other

holy day in accordance with the requirements of his or her religion or

the wearing of any attire, clothing, or facial hair in accordance with

the requirements of his or her religion, unless, after engaging in a

bona fide effort, the employer demonstrates that it is unable to

reasonably accommodate the employee's or prospective employee's

sincerely held religious observance or practice without undue hardship

on the conduct of the employer's business. Notwithstanding any other

provision of law to the contrary, an employee shall not be entitled to

premium wages or premium benefits for work performed during hours to

which such premium wages or premium benefits would ordinarily be

applicable, if the employee is working during such hours only as an

accommodation to his or her sincerely held religious requirements.

Nothing in this paragraph or paragraph (b) of this subdivision shall

alter or abridge the rights granted to an employee concerning the

payment of wages or privileges of seniority accruing to that employee.

(b) Except where it would cause an employer to incur an undue

hardship, no person shall be required to remain at his or her place of

employment during any day or days or portion thereof that, as a

requirement of his or her religion, he or she observes as his or her

sabbath or other holy day, including a reasonable time prior and

subsequent thereto for travel between his or her place of employment and

his or her home, provided however, that any such absence from work

shall, wherever practicable in the reasonable judgment of the employer,

be made up by an equivalent amount of time and work at some other

mutually convenient time, or shall be charged against any leave with pay

ordinarily granted, other than sick leave, provided further, however,

that any such absence not so made up or charged, may be treated by the

employer of such person as leave taken without pay.

(c) It shall be an unlawful discriminatory practice for an employer to

refuse to permit an employee to utilize leave, as provided in paragraph

(b) of this subdivision, solely because the leave will be used for

absence from work to accommodate the employee's sincerely held religious

observance or practice.

(d) As used in this subdivision: (1) "undue hardship" shall mean an

accommodation requiring significant expense or difficulty (including a

significant interference with the safe or efficient operation of the

workplace or a violation of a bona fide seniority system). Factors to be

considered in determining whether the accommodation constitutes an undue

economic hardship shall include, but not be limited to:

(i) the identifiable cost of the accommodation, including the costs of

loss of productivity and of retaining or hiring employees or

transferring employees from one facility to another, in relation to the

size and operating cost of the employer;

(ii) the number of individuals who will need the particular

accommodation to a sincerely held religious observance or practice; and

(iii) for an employer with multiple facilities, the degree to which

the geographic separateness or administrative or fiscal relationship of

the facilities will make the accommodation more difficult or expensive.

Provided, however, an accommodation shall be considered to constitute

an undue hardship if it will result in the inability of an employee to

perform the essential functions of the position in which he or she is

employed.

(2) "premium wages" shall include overtime pay and compensatory time

off, and additional remuneration for night, weekend or holiday work, or

for standby or irregular duty.

(3) "premium benefit" shall mean an employment benefit, such as

seniority, group life insurance, health insurance, disability insurance,

sick leave, annual leave, or an educational or pension benefit that is

greater than the employment benefit due the employee for an equivalent

period of work performed during the regular work schedule of the

employee.

In the case of any employer other than the state, any of its political

subdivisions or any school district, this subdivision shall not apply

where the uniform application of terms and conditions of attendance to

employees is essential to prevent undue economic hardship to the

employer. In any proceeding in which the applicability of this

subdivision is in issue, the burden of proof shall be upon the employer.

If any question shall arise whether a particular position or class of

positions is excepted from this subdivision by this paragraph, such

question may be referred in writing by any party claimed to be

aggrieved, in the case of any position of employment by the state or any

of its political subdivisions, except by any school district, to the

civil service commission, in the case of any position of employment by

any school district, to the commissioner of education, who shall

determine such question and in the case of any other employer, a party

claiming to be aggrieved may file a complaint with the division pursuant

to this article. Any such determination by the civil service commission

shall be reviewable in the manner provided by article seventy-eight of

the civil practice law and rules and any such determination by the

commissioner of education shall be reviewable in the manner and to the

same extent as other determinations of the commissioner under section

three hundred ten of the education law.

11. Nothing contained in this section shall be construed to bar any

religious or denominational institution or organization, or any

organization operated for charitable or educational purposes, which is

operated, supervised or controlled by or in connection with a religious

organization, from limiting employment or sales or rental of housing

accommodations or admission to or giving preference to persons of the

same religion or denomination or from taking such action as is

calculated by such organization to promote the religious principles for

which it is established or maintained.

12. Notwithstanding the provisions of subdivisions one, one-a and

three-a of this section, it shall not be an unlawful discriminatory

practice for an employer, employment agency, labor organization or joint

labor-management committee to carry out a plan, approved by the

division, to increase the employment of members of a minority group (as

may be defined pursuant to the regulations of the division) which has a

state-wide unemployment rate that is disproportionately high in

comparison with the state-wide unemployment rate of the general

population. Any plan approved under this subdivision shall be in writing

and the division's approval thereof shall be for a limited period and

may be rescinded at any time by the division.

13. It shall be an unlawful discriminatory practice (i) for any person

to boycott or blacklist, or to refuse to buy from, sell to or trade

with, or otherwise discriminate against any person, because of the race,

creed, color, national origin, citizenship or immigration status, sexual

orientation, gender identity or expression, military status, sex, status

as a victim of domestic violence, disability, or familial status, or of

such person, or of such person's partners, members, stockholders,

directors, officers, managers, superintendents, agents, employees,

business associates, suppliers or customers, or (ii) for any person

wilfully to do any act or refrain from doing any act which enables any

such person to take such action. This subdivision shall not apply to:

(a) Boycotts connected with labor disputes; or

(b) Boycotts to protest unlawful discriminatory practices.

14. In addition to reasonable modifications in policies, practices, or

procedures, including those defined in subparagraph (iv) of paragraph

(d) of subdivision two of this section or reasonable accommodations for

persons with disabilities as otherwise provided in this section,

including the use of an animal as a reasonable accommodation, it shall

be an unlawful discriminatory practice for any person engaged in any

activity covered by this section to deny access or otherwise to

discriminate against a blind person, a person who is deaf or hard of

hearing or a person with another disability because he or she is

accompanied by a dog that has been trained to work or perform specific

tasks for the benefit of such person by a professional guide dog,

hearing dog or service dog training center or professional guide dog,

hearing dog or service dog trainer, or to discriminate against such

professional guide dog, hearing dog or service dog trainer engaged in

such training of a dog for use by a person with a disability, whether or

not accompanied by the person for whom the dog is being trained.

15. It shall be an unlawful discriminatory practice for any person,

agency, bureau, corporation or association, including the state and any

political subdivision thereof, to deny any license or employment to any

individual by reason of his or her having been convicted of one or more

criminal offenses, or by reason of a finding of a lack of "good moral

character" which is based upon his or her having been convicted of one

or more criminal offenses, when such denial is in violation of the

provisions of article twenty-three-A of the correction law. Further,

there shall be a rebuttable presumption in favor of excluding from

evidence the prior incarceration or conviction of any person, in a case

alleging that the employer has been negligent in hiring or retaining an

applicant or employee, or supervising a hiring manager, if after

learning about an applicant or employee's past criminal conviction

history, such employer has evaluated the factors set forth in section

seven hundred fifty-two of the correction law, and made a reasonable,

good faith determination that such factors militate in favor of hire or

retention of that applicant or employee. No person, agency, bureau,

corporation, association, the state or any political subdivision

thereof, shall require an individual to provide a copy of his or her

criminal history record that he or she obtained pursuant to the rules

and regulations of the division of criminal justice services.

16. It shall be an unlawful discriminatory practice, unless

specifically required or permitted by statute, for any person, agency,

bureau, corporation or association, including the state and any

political subdivision thereof, to make any inquiry about, whether in any

form of application or otherwise, or to act upon adversely to the

individual involved, any arrest or criminal accusation of such

individual not then pending against that individual which was followed

by a termination of that criminal action or proceeding in favor of such

individual, as defined in subdivision two of section 160.50 of the

criminal procedure law, or by an order adjourning the criminal action in

contemplation of dismissal, pursuant to section 170.55, 170.56, 210.46,

210.47, or 215.10 of the criminal procedure law, or by a youthful

offender adjudication, as defined in subdivision one of section 720.35

of the criminal procedure law, or by a conviction for a violation sealed

pursuant to section 160.55 of the criminal procedure law or by a

conviction which is sealed pursuant to section 160.59 or 160.58 of the

criminal procedure law, or by a conviction which is sealed pursuant to

section 160.57 of the criminal procedure law, except where such

conviction record is accessed pursuant to subparagraph (vii), (viii), or

(xvi) of paragraph (d) of subdivision one of section 160.57 of the

criminal procedure law, in connection with the licensing, housing,

employment, including volunteer positions, or providing of credit or

insurance to such individual; provided, further, that no person shall be

required to divulge information pertaining to any arrest or criminal

accusation of such individual not then pending against that individual

which was followed by a termination of that criminal action or

proceeding in favor of such individual, as defined in subdivision two of

section 160.50 of the criminal procedure law, or by an order adjourning

the criminal action in contemplation of dismissal, pursuant to section

170.55 or 170.56, 210.46, 210.47 or 215.10 of the criminal procedure

law, or by a youthful offender adjudication, as defined in subdivision

one of section 720.35 of the criminal procedure law, or by a conviction

for a violation sealed pursuant to section 160.55 of the criminal

procedure law, or by a conviction which is sealed pursuant to section

160.58 or 160.59 of the criminal procedure law, or by a conviction which

is sealed pursuant to section 160.57 of the criminal procedure law,

except where such conviction record is accessed pursuant to subparagraph

(vii), (viii), or (xvi) of paragraph (d) of subdivision one of section

160.57 of the criminal procedure law. An individual required or

requested to provide information in violation of this subdivision may

respond as if the arrest, criminal accusation, or disposition of such

arrest or criminal accusation did not occur. The provisions of this

subdivision shall not apply to the licensing activities of governmental

bodies in relation to the regulation of guns, firearms and other deadly

weapons or in relation to an application for employment as a police

officer or peace officer as those terms are defined in subdivisions

thirty-three and thirty-four of section 1.20 of the criminal procedure

law; provided further that the provisions of this subdivision shall not

apply to an application for employment or membership in any law

enforcement agency with respect to any arrest or criminal accusation

which was followed by a youthful offender adjudication, as defined in

subdivision one of section 720.35 of the criminal procedure law, or by a

conviction for a violation sealed pursuant to section 160.55 of the

criminal procedure law, or by a conviction which is sealed pursuant to

section 160.58 or 160.59 of the criminal procedure law, or by a

conviction which is sealed pursuant to section 160.57 of the criminal

procedure law. For purposes of this subdivision, an action which has

been adjourned in contemplation of dismissal, pursuant to section 170.55

or 170.56, 210.46, 210.47 or 215.10 of the criminal procedure law, shall

not be considered a pending action, unless the order to adjourn in

contemplation of dismissal is revoked and the case is restored to the

calendar for further prosecution.

17. Nothing in this section shall prohibit the offer and acceptance of

a discount to a person sixty-five years of age or older for housing

accommodations.

18. It shall be an unlawful discriminatory practice for the owner,

lessee, sub-lessee, assignee, or managing agent of, or other person

having the right of ownership of or possession of or the right to rent

or lease housing accommodations:

(1) To refuse to permit, at the expense of a person with a disability,

reasonable modifications of existing premises occupied or to be occupied

by the said person, if the modifications may be necessary to afford the

said person full enjoyment of the premises, in conformity with the

provisions of the New York state uniform fire prevention and building

code except that, in the case of a rental, the landlord may, where it is

reasonable to do so, condition permission for a modification on the

renter's agreeing to restore the interior of the premises to the

condition that existed before the modification, reasonable wear and tear

excepted.

(2) To refuse to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary to

afford said person with a disability equal opportunity to use and enjoy

a dwelling, including the use of an animal as a reasonable accommodation

to alleviate symptoms or effects of a disability, and including

reasonable modification to common use portions of the dwelling, or

(3) In connection with the design and construction of covered

multi-family dwellings for first occupancy after March thirteenth,

nineteen hundred ninety-one, a failure to design and construct dwellings

in accordance with the accessibility requirements for multi-family

dwellings found in the New York state uniform fire prevention and

building code to provide that:

(i) The public use and common use portions of the dwellings are

readily accessible to and usable by persons with disabilities;

(ii) All the doors are designed in accordance with the New York state

uniform fire prevention and building code to allow passage into and

within all premises and are sufficiently wide to allow passage by

persons in wheelchairs; and

(iii) All premises within covered multi-family dwelling units contain

an accessible route into and through the dwelling; light switches,

electrical outlets, thermostats, and other environmental controls are in

accessible locations; there are reinforcements in the bathroom walls to

allow later installation of grab bars; and there are usable kitchens and

bathrooms such that an individual in a wheelchair can maneuver about the

space, in conformity with the New York state uniform fire prevention and

building code.

19. (a) Except as provided in paragraph (b) of this subdivision, it

shall be an unlawful discriminatory practice of any employer, labor

organization, employment agency, licensing agency, or its employees,

agents, or members:

(1) to directly or indirectly solicit, require, or administer a

genetic test to a person, or solicit or require information from which a

predisposing genetic characteristic can be inferred as a condition of

employment, preemployment application, labor organization membership, or

licensure; or

(2) to buy or otherwise acquire the results or interpretation of an

individual's genetic test results or information from which a

predisposing genetic characteristic can be inferred or to make an

agreement with an individual to take a genetic test or provide genetic

test results or such information.

(b) An employer may require a specified genetic test as a condition of

employment where such a test is shown to be directly related to the

occupational environment, such that the employee or applicant with a

particular genetic anomaly might be at an increased risk of disease as a

result of working in said environment.

(c) Nothing in this section shall prohibit the genetic testing of an

employee who requests a genetic test and who provides written and

informed consent to taking a genetic test for any of the following

purposes:

(1) pursuant to a workers' compensation claim;

(2) pursuant to civil litigation; or

(3) to determine the employee's susceptibility to potentially

carcinogenic, toxic, or otherwise hazardous chemicals or substances

found in the workplace environment only if the employer does not

terminate the employee or take any other action that adversely affects

any term, condition or privilege of employment pursuant to the genetic

test results.

(d) If an employee consents to genetic testing for any of the

aforementioned allowable reasons, he or she must be given and sign an

authorization of consent form which explicitly states the specific

purpose, uses and limitations of the genetic tests and the specific

traits or characteristics to be tested.

21. Nothing in this section shall prohibit the offer and acceptance of

a discount for housing accommodations to a person with a disability, as

defined in subdivision twenty-one of section two hundred ninety-two of

this article.

22. (a) It shall be an unlawful discriminatory practice for an

employer or licensing agency, because of any individual's status as a

victim of domestic violence, to refuse to hire or employ or license or

to bar or to discharge from employment such individual or to

discriminate against such individual in compensation or in terms,

conditions or privileges of employment.

(b) It shall be an unlawful discriminatory practice for an employer or

employment agency to print or circulate or cause to be printed or

circulated any statement, advertisement or publication, or to use any

form of application for employment or to make any inquiry in connection

with prospective employment which expresses, directly or indirectly, any

limitation, specification or discrimination as to status as a victim of

domestic violence, or any intent to make any such limitation,

specification or discrimination; provided, however, that no provision of

this subdivision shall be construed to prohibit the employer from making

any inquiry or obtaining information for the purpose of providing

assistance to, or a reasonable accommodation in accordance with the

provisions of this subdivision to, a victim of domestic violence.

(c)(1) It shall be an unlawful discriminatory practice for an employer

to refuse to provide a reasonable accommodation to an employee who is

known by the employer to be a victim of domestic violence, limited to

those accommodations set forth in subparagraph two of this paragraph,

when such employee must be absent from work for a reasonable time,

unless such absence would cause an undue hardship to the employer as set

forth in subparagraph three of this paragraph, provided, however that

the employer may require an employee to charge any time off pursuant to

this section against any leave with pay ordinarily granted, where

available, unless otherwise provided for in a collective bargaining

agreement or existing employee handbook or policy, and any such absence

that cannot be charged may be treated as leave without pay. An employee

who must be absent from work in accordance with subparagraph two of this

paragraph shall be entitled to the continuation of any health insurance

coverage provided by the employer, to which the employee is otherwise

entitled during any such absence.

(2) An employer is required to provide a reasonable accommodation to

an employee who is a victim of domestic violence who must be absent from

work for a reasonable time, in accordance with the provisions of

subparagraph one of this paragraph, limited to the following:

(i) Seeking medical attention for injuries caused by domestic violence

including for a child who is a victim of domestic violence, provided

that the employee is not the perpetrator of the domestic violence

against the child; or

(ii) Obtaining services from a domestic violence shelter, program, or

rape crisis center as a result of domestic violence; or

(iii) Obtaining psychological counseling related to an incident or

incidents of domestic violence, including for a child who is a victim of

domestic violence, provided that the employee is not the perpetrator of

the domestic violence against the child; or

(iv) Participating in safety planning and taking other actions to

increase safety from future incidents of domestic violence, including

temporary or permanent relocation; or

(v) Obtaining legal services, assisting in the prosecution of the

offense, or appearing in court in relation to the incident or incidents

of domestic violence.

(3) An employer is required to provide a reasonable accommodation for

an employee's absence in accordance with the provisions of subparagraphs

one and two of this paragraph unless the employer can demonstrate that

the employee's absence would constitute an undue hardship to the

employer. A determination of whether such an absence will constitute an

undue hardship shall include consideration of factors such as:

(i) The overall size of the business, program or enterprise with

respect to the number of employees, number and type of facilities, and

size of budget; and

(ii) The type of operation in which the business, program or

enterprise is engaged, including the composition and structure of the

workforce.

(4) An employee who must be absent from work in accordance with the

provisions of subparagraph one of this paragraph shall provide the

employer with reasonable advance notice of the employee's absence,

unless such advance notice is not feasible.

(5) An employee who must be absent from work in accordance with the

provisions of subparagraph one of this paragraph and who cannot feasibly

give reasonable advance notice of the absence in accordance with

subparagraph four of this paragraph must, within a reasonable time after

the absence, provide a certification to the employer when requested by

the employer.

Such certification shall be in the form of:

(i) A police report indicating that the employee or his or her child

was a victim of domestic violence;

(ii) A court order protecting or separating the employee or his or her

child from the perpetrator of an act of domestic violence;

(iii) Other evidence from the court or prosecuting attorney that the

employee appeared in court; or

(iv) Documentation from a medical professional, domestic violence

advocate, health care provider, or counselor that the employee or his or

her child was undergoing counseling or treatment for physical or mental

injuries or abuse resulting in victimization from an act of domestic

violence.

(6) Where an employee has a physical or mental disability resulting

from an incident or series of incidents of domestic violence, such

employee shall be treated in the same manner as an employee with any

other disability, pursuant to the provisions of this section which

provide that discrimination and refusal to provide reasonable

accommodation of disability are unlawful discriminatory practices.

(d) To the extent allowed by law, employers shall maintain the

confidentiality of any information regarding an employee's status as a

victim of domestic violence.