N.Y. Executive Law § 296-a: Unlawful discriminatory practices in relation to credit

§ 296-a. Unlawful discriminatory practices in relation to credit. 1.

It shall be an unlawful discriminatory practice for any creditor or any

officer, agent or employee thereof:

a. In the case of applications for credit with respect to the

purchase, acquisition, construction, rehabilitation, repair or

maintenance of any housing accommodation, land or commercial space to

discriminate against any such applicant because of the race, creed,

color, 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, disability, or

familial status of such applicant or applicants or any member,

stockholder, director, officer or employee of such applicant or

applicants, or of the prospective occupants or tenants of such housing

accommodation, land or commercial space, in the granting, withholding,

extending or renewing, or in the fixing of the rates, terms or

conditions of, any such credit;

b. To discriminate in the granting, withholding, extending or

renewing, or in the fixing of the rates, terms or conditions of, any

form of credit, on the basis of race, creed, color, 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, disability, or familial status;

c. To use any form of application for credit or use or make any record

or inquiry 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, age, sex, marital status,

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

d. To make any inquiry of an applicant concerning his or her capacity

to reproduce, or his or her use or advocacy of any form of birth control

or family planning;

e. To refuse to consider sources of an applicant's income or to

subject an applicant's income to discounting, in whole or in part,

because of an applicant's race, creed, color, 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, childbearing potential, disability, or

familial status;

f. To discriminate against a married person because such person

neither uses nor is known by the surname of his or her spouse.

This paragraph shall not apply to any situation where the use of a

surname would constitute or result in a criminal act.

2. Without limiting the generality of subdivision one of this section,

it shall be considered discriminatory if, because of an applicant's or

class of applicants' race, creed, color, 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, disability, or familial status, (i) an applicant or

class of applicants is denied credit in circumstances where other

applicants of like overall credit worthiness are granted credit, or (ii)

special requirements or conditions, such as requiring co-obligors or

reapplication upon marriage, are imposed upon an applicant or class of

applicants in circumstances where similar requirements or conditions are

not imposed upon other applicants of like overall credit worthiness.

3. It shall not be considered discriminatory if credit

differentiations or decisions are based upon factually supportable,

objective differences in applicants' overall credit worthiness, which

may include reference to such factors as current income, assets and

prior credit history of such applicants, as well as reference to any

other relevant factually supportable data; provided, however, that no

creditor shall consider, in evaluating the credit worthiness of an

applicant, aggregate statistics or assumptions relating to 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 disability,

or to the likelihood of any group of persons bearing or rearing

children, or for that reason receiving diminished or interrupted income

in the future.

3-a. It shall not be an unlawful discriminatory practice to consider

age in determining credit worthiness when age has a demonstrable and

statistically sound relationship to a determination of credit

worthiness.

4. a. If so requested by an applicant for credit, a creditor shall

furnish such applicant with a statement of the specific reasons for

rejection of the applicant's application for credit.

b. If so requested in writing by an individual who is or was married,

a creditor or credit reporting bureau shall maintain in its records a

separate credit history for any such individual. Such separate history

shall include all obligations as to which such bureau has notice with

respect to which any such person is or was individually or jointly

liable.

5. No provision of this section providing spouses the right to

separately apply for credit, borrow money, or have separate credit

histories maintained shall limit or foreclose the right of creditors,

under any other provision of law, to hold one spouse legally liable for

debts incurred by the other.

6. Any person claiming to be aggrieved by an unlawful discriminatory

practice engaged in by a regulated creditor, in lieu of the procedure

set forth in section two hundred ninety-seven of this article, may file

a verified complaint with the superintendent, as provided hereinafter;

provided, however, that the filing of a complaint with either the

superintendent or the division shall bar subsequent recourse to the

other agency, as well as to any local commission on human rights, with

respect to the grievance complained of.

7. In the case of a verified complaint filed with the superintendent

the following procedures shall be followed:

a. After receipt of the complaint, the superintendent shall make a

determination within thirty days of whether there is probable cause to

believe that the person named in the complaint has engaged in or is

engaging in an unlawful discriminatory practice. If the superintendent

determines there is no such probable cause, the complaint shall be

dismissed. If the superintendent determines that there is such probable

cause, he or she shall attempt to resolve such complaint by conference

and conciliation. If conciliation is achieved, the terms shall be

recorded in a written agreement signed by the creditor and complainant,

a copy of which shall be forwarded to the commissioner.

b. If conciliation is not achieved, the superintendent or his or her

designated representative shall conduct a hearing with respect to the

alleged violation of this section. All interested parties shall be

entitled to adequate and timely notice of the hearing. Such parties

shall have the right to be represented by counsel or by other

representatives of their own choosing; to offer evidence and witnesses

in their own behalf and to cross-examine other parties and witnesses; to

have the power of subpoena exercised in their behalf; and to have access

to a written record of such hearing. The superintendent or his or her

representative shall not be bound by the strict rules of evidence

prevailing in courts of law or equity. The testimony taken shall be

under oath and a record shall be made of the proceedings. A written

decision shall be made by the superintendent or his or her designated

representative separately setting forth findings of fact and conclusions

of law. A copy of such decision shall be forwarded to the commissioner.

c. If the superintendent finds that a violation of this section has

occurred, the superintendent shall issue an order which shall do one or

more of the following:

(1) impose a fine in an amount not to exceed ten thousand dollars for

each violation, to be paid to the people of the state of New York;

(2) award compensatory damages to the person aggrieved by such

violation;

(3) for a claim of sex discrimination only, award reasonable

attorney's fees attributable to such claim to any prevailing party;

provided, however, that a prevailing respondent or defendant in order to

recover such reasonable attorney's fees must make a motion requesting

such fees and show that the action or proceeding brought was frivolous.

In no case shall attorney's fees be awarded to the department, nor shall

the department be liable to a prevailing party for attorney's fees. In

order to find the action or proceeding to be frivolous, the

superintendent must find in writing one or more of the following:

(a) the action or proceeding was commenced, used or continued in bad

faith, solely to delay or prolong the resolution of the litigation or to

harass or maliciously injure another; or

(b) the action or proceeding was commenced or continued in bad faith

without any reasonable basis and could not be supported by a good faith

argument for an extension, modification or reversal of existing law. If

the action or proceeding was promptly discontinued when the party or

attorney learned or should have learned that the action or proceeding

lacked such a reasonable basis, the court may find that the party or the

attorney did not act in bad faith.

(4) require the regulated creditor to cease and desist from such

unlawful discriminatory practices;

(5) require the regulated creditor to take such further affirmative

action as will effectuate the purposes of this section, including, but

not limited to, granting the credit which was the subject of the

complaint.

d. Any complainant, respondent or other person aggrieved by any order

or final determination of the superintendent may obtain judicial review

thereof.

8. Where the superintendent makes a determination that a regulated

creditor has engaged in or is engaging in discriminatory practices, the

superintendent is empowered to issue appropriate orders to such creditor

pursuant to the banking law. Such orders may be issued without the

necessity of a complaint being filed by an aggrieved person.

9. Whenever any creditor makes application to the superintendent of

financial services to take any action requiring consideration by the

superintendent of the public interest and the needs and convenience

thereof, or requiring a finding that the financial responsibility,

experience, charter, and general fitness of the applicant, and of the

members thereof if the applicant be a co-partnership or association, and

of the officers and directors thereof if the applicant be a corporation,

are such as to command the confidence of the community and to warrant

belief that the business will be operated honestly, fairly, and

efficiently, such creditor shall certify to the superintendent

compliance with the provisions of this section. In the event that the

records of the department of financial services show that such creditor

has been found to be in violation of this section, such creditor shall

describe what action has been taken with respect to its credit policies

and procedures to remedy such violation or violations. The

superintendent shall, in approving the foregoing applications and making

the foregoing findings, give appropriate weight to compliance with this

section.

10. Any complaint filed with the superintendent pursuant to this

section shall be so filed within one year after the occurrence of the

alleged unlawful discriminatory practice.

11. The superintendent is hereby empowered to promulgate rules and

regulations hereunder to effectuate the purposes of this section.

12. The provisions of this section, as they relate to age, shall not

apply to persons under the age of eighteen years.