What's happening
This bill requires employers to use hiring and promotion tests that minimize discrimination based on race, ethnicity, or sex, and sets standards for using and auditing such tests.
Why it matters
Raises the bar for fairness in hiring and promotion. Employers must actively seek out and use tests or selection procedures that minimize the risk of discrimination, not just avoid intentional bias but also reduce any discriminatory outcomes for race, ethnicity, or sex, meaning employers must be more proactive in identifying fairer assessment tools.
Introduces strict standards and ongoing audits for hiring assessments. Employers are required to use only “pre-audited assessment technology” that has been validated to prevent adverse impacts on protected groups, and must annually review and document the impact of these tools, creating a higher compliance burden and more accountability.
Defines measurable benchmarks for compliance. The bill sets clear metrics—such as requiring a 5% or greater increase in protected class hiring/promotion, or no adverse impact—as criteria for determining whether a test is discriminatory, providing employers with concrete standards but also making non-compliance easier to challenge.
Expands the legal framework for job applicants. By precisely defining who counts as an “applicant” and clarifying what constitutes “adverse impact,” this legislation gives both employers and potential employees clearer grounds for complaint or defense in discrimination cases, potentially influencing how disputes are resolved.
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Who cares
Employers using hiring or promotion tests
They would have to investigate alternatives and choose the test or selection procedure posing the lowest risk of discriminatory impact.
Job applicants and employees seeking promotion
They would gain protections against tests and selection procedures designed, intended or used to discriminate, or having a discriminatory effect, based on race, ethnic group or sex.
Employers defending discrimination claims
They could qualify for protection against adverse-impact findings for a specific protected class by using qualifying pre-audited assessment technology, meeting hiring or promotion benchmarks, conducting annual examinations and discontinuing noncompliant versions.
Employment assessment technology providers
Their products would need employer-conducted validity studies and pre-use examinations showing no probability of adverse impact to qualify as pre-audited assessment technology.
Headline styles
Ban Biased Hiring Tests
Plain English, a few words. Used as the page title.
Sponsors
14 Co-sponsors
1 Multi-sponsor
History
- Referred to labor
- Referred to labor
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
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 Assembly, do enact as follows:
Section 1. The labor law is amended by adding a new section 215-d to read as follows:
§ 215-d. Employment tests and selection procedures. 1. If an employer utilizes a test or other selection procedure for purposes of hiring or promotion, the employer shall select and administer the test or other selection procedure so as best to ensure that, when administered to applicants, the test or selection procedure is not designed, intended or used to discriminate, and does not have the effect of discriminating, because of an individual's race, ethnic group, or sex. In selecting or administering such test or selection procedure, the employer shall investigate alternative tests and selection procedures and shall select the alternative that poses the lowest risk of discriminatory impact.
2. For purposes of subdivision one of this section and paragraph (a) of subdivision one of section two hundred ninety-six of the executive law, a test or other selection procedure used by an employer for purposes of hiring or promotion shall be deemed not to discriminate on the basis of a finding of adverse impact against a specific protected class if, for the specific protected class:
(a) the test or selection procedure utilizes pre-audited assessment technology that, upon use, resulted in an increase in the hiring or promotion of that protected class by five percent or greater as compared to the pre-implementation workforce composition of the protected class;
(b) the employer conducts an annual examination of the pre-audited assessment technology to determine and document whether the technology 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
(c) the annual examination demonstrates that the pre-audited assessment technology:
(i) resulted in an increase in the hiring or promotion of the protected class by five percent or greater during the examined year as compared to the pre-implementation workforce composition of the protected class; or
(ii) resulted in no adverse impact on the protected class; and
(d) the employer ceases to use any version of the pre-audited assessment technology that does not meet the requirements of paragraph (c) of this subdivision.
3. Subdivision two of this section shall not impact any other defense an employer may have to claims of employment discrimination under any other provision of law.
4. For purposes of this section:
(a) "Pre-audited assessment technology" shall mean a test or other selection procedure used by an employer for purposes of hiring or promotion that:
(i) prior to use by the employer, was the subject of a validity study conducted by the employer that conforms to the requirements for validity studies set forth in 29 C.F.R. section 1607.5; and
(ii) prior to use by the employer, was examined and demonstrated no probability for adverse impact based on race, color, national origin, or sex.
(b) "Adverse impact" shall be indicated where a selection rate for any race, color, national origin, or sex constituting two percent or more of the total applicant population is less than four-fifths or eighty percent of the rate for the group with the highest selection rate and where such difference in selection rates between such groups is statistically significant.
(c) "Pre-implementation workforce composition" means the demographic composition of a protected class as a percentage of the employer's overall workforce that existed immediately prior to implementation of a pre-audited assessment technology.
(d) "Protected class" shall mean race, ethnic group, or sex.
(e) "Applicant" shall mean any individual as to whom the following four criteria are satisfied:
(i) the individual submits an expression of interest in employment or promotion;
(ii) the employer considers the individual for employment in or promotion to a particular position;
(iii) the individual's expression of interest indicates the individual possesses the basic qualifications for the position; and
(iv) the individual at no point in the selection process, prior to receiving an offer or promotion, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
§ 2. This act shall take effect immediately.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.