Bill Text: NY A07989 | 2019-2020 | General Assembly | Introduced

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Bill Title: Relates to discrimination in the use of employment tests and selection procedures; provides that employers that utilize a test or other selection procedure for purposes of hiring or promotion shall select and administer the test or other selection procedure to ensure that it does not have the effect of discrimination because of an individual's race, ethnic group, or sex.

Spectrum: Partisan Bill (Democrat 16-0)

Status: (Introduced - Dead) 2020-01-08 - referred to labor [A07989 Detail]

Download: New_York-2019-A07989-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          7989

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 30, 2019
                                       ___________

        Introduced by M. of A. JOYNER -- read once and referred to the Committee
          on Labor

        AN  ACT to amend the labor law, in relation to discrimination in the use
          of employment tests and selection procedures

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The labor law is amended by adding a new section 215-d to
     2  read as follows:
     3    § 215-d. Employment tests and selection procedures. 1. If an  employer
     4  utilizes  a  test or other selection procedure for purposes of hiring or
     5  promotion, the employer shall select and administer the  test  or  other
     6  selection  procedure  so  as  best  to ensure that, when administered to
     7  applicants, the test or selection procedure is not designed, intended or
     8  used to discriminate, and does not have the  effect  of  discriminating,
     9  because  of  an individual's race, ethnic group, or sex. In selecting or
    10  administering such test  or  selection  procedure,  the  employer  shall
    11  investigate  alternative tests and selection procedures and shall select
    12  the alternative that poses the lowest risk of discriminatory impact.
    13    2. For purposes of subdivision one of this section and  paragraph  (a)
    14  of  subdivision  one  of section two hundred ninety-six of the executive
    15  law, a test or  other  selection  procedure  used  by  an  employer  for
    16  purposes  of  hiring or promotion shall be deemed not to discriminate on
    17  the basis of a finding of adverse impact against  a  specific  protected
    18  class if, for the specific protected class:
    19    (a)  the  test  or selection procedure utilizes pre-audited assessment
    20  technology that, upon use, resulted in an  increase  in  the  hiring  or
    21  promotion of that protected class by five percent or greater as compared
    22  to the pre-implementation workforce composition of the protected class;
    23    (b)  the  employer  conducts  an annual examination of the pre-audited
    24  assessment technology to determine and document whether  the  technology
    25  had an adverse impact for the protected class during the audited year;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11934-01-9
        A. 7989                             2

     1    (c)  the  annual examination demonstrates that the pre-audited assess-
     2  ment technology:
     3    (i)  resulted  in  an  increase  in  the  hiring  or  promotion of the
     4  protected class by five percent or greater during the examined  year  as
     5  compared   to   the  pre-implementation  workforce  composition  of  the
     6  protected class; or
     7    (ii) resulted in no adverse impact on the protected class; and
     8    (d) the employer ceases to use any version of the pre-audited  assess-
     9  ment  technology that does not meet the requirements of paragraph (c) of
    10  this subdivision.
    11    3. Subdivision two of this section shall not impact any other  defense
    12  an  employer  may  have to claims of employment discrimination under any
    13  other provision of law.
    14    4. For purposes of this section:
    15    (a) "Pre-audited assessment technology" shall mean  a  test  or  other
    16  selection  procedure  used  by  an  employer  for  purposes of hiring or
    17  promotion that:
    18    (i) prior to use by the employer, was the subject of a validity  study
    19  conducted by the employer that conforms to the requirements for validity
    20  studies set forth in 29 C.F.R. section 1607.5; and
    21    (ii)  prior  to  use by the employer, was examined and demonstrated no
    22  probability for adverse impact based on race, color, national origin, or
    23  sex.
    24    (b) "Adverse impact" shall be indicated where a selection rate for any
    25  race, color, national origin, or sex constituting two percent or more of
    26  the total applicant  population  is  less  than  four-fifths  or  eighty
    27  percent  of  the  rate for the group with the highest selection rate and
    28  where such difference in selection rates between such groups is  statis-
    29  tically significant.
    30    (c)  "Pre-implementation  workforce composition" means the demographic
    31  composition of a protected class as a percentage of the employer's over-
    32  all workforce that existed immediately  prior  to  implementation  of  a
    33  pre-audited assessment technology.
    34    (d) "Protected class" shall mean race, ethnic group, or sex.
    35    (e)  "Applicant"  shall  mean  any individual as to whom the following
    36  four criteria are satisfied:
    37    (i) the individual submits an expression of interest in employment  or
    38  promotion;
    39    (ii)  the  employer  considers  the  individual  for  employment in or
    40  promotion to a particular position;
    41    (iii) the individual's expression of interest indicates the individual
    42  possesses the basic qualifications for the position; and
    43    (iv) the individual at no point in the  selection  process,  prior  to
    44  receiving an offer or promotion, removes himself or herself from further
    45  consideration  or otherwise indicates that he or she is no longer inter-
    46  ested in the position.
    47    § 2. This act shall take effect immediately.