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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. Therefore, we are committed to updating our series on employment & labor law with fresh, verifiable, and credible content. In that spirit, this blog is Part VII of our series on New York State and City laws that apply to the issues of workplace harassment, discrimination, & retaliation. In Part VI of this series, we hammered on “Prohibitions,” particularly any conduct that is prohibited by these laws.

Further, like we have mentioned in past blogs under this series, it is crucial to note that in New York, harassment claims, disparate impact claims, and disparate treatment claims are recognized by the jurisdiction’s three laws that include the New York City Human Rights Law (NYCHRL), NYC Administrative Code 8-101 et seq, the New York Equal Pay Act (N.Y. Lab. Law § 194), and the New York State Human Rights Law (NYSHRL) (N.Y. Exec. Law § 290 et seq.).

Accordingly, in order to move the discussion forward, this blog covers, with respect to “Liability Standards,” “Disparate Impact Claims,” as recognized under each of these three New York City and State laws.

Disparate Impact Claims

By definition, a disparate impact occurs when an employee or applicant suffers an adverse discriminatory effect as a result of facially neutral practice or policy created by the employer.

NYCHRL

Just like it does for disparate treatment claims, the NYCHRL is very comprehensive in its recognition of disparate impact claims. According to the NYCHRL, in order to establish a disparate impact-based unlawful discriminatory practice, an individual must demonstrate that, while the employer has failed in pleading and proving an affirmative defense regarding the practice or policy’s bearing of a significant relationship to a significant goal of the business, an employer’s practice of policy is the result of a disparate impact to any protected classes’ detriment, as provided by the NYCHRL.

However, the NYCHRL does not require one to demonstrate the specific practice or policy that result in the disparate impact if the complaint is based on a group of practices or policies. Nonetheless, as provided under directive NYC Administrative Code § 8-107, subd. 17 (1)(a) and (b), if an employee provides substantial evidence regarding the availability of an alternative practice or policy with less disparate impact, such an employee may prevail even if the burden of proof is met by the employer.

It is also critical to note that under the NYCHRL, a prima facie case of disparate impact discrimination cannot be sufficiently established by the mere existence of a statistical disproportion of the general population and the employer workforce unless:

  • The alleged imbalance is caused by an identifiable practice or policy.
  • The pool for comparison is made up of the general population.
  • The imbalance is statistically significant.

NYSHRL

Just like the NYCHRL, the NYSHRL also recognizes disparate impact claims. Under the NYSHRL, a plaintiff is required to provide substantial evidence that the employer’s facially neutral policies or practices have a higher level of adverse effects on a protected class compared to other classes and it is, otherwise, impossible to justify it.

In Part IX of this series, we shall hammer on the recognition of harassment claims under the New York laws that apply to the issues of workplace harassment, discrimination, & retaliation.

Stay tuned for more legal guidance, training, and counsel until then. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.