New York: Disparate impact framework clarified

At a glance

• SB S8338, signed December 19, 2025, confirms that employment discrimination may be proven solely based on discriminatory effect, even absent intent.
• The amendment establishes a statutory burden‑shifting framework similar to disparate‑impact analysis.
• Employers must show job‑relatedness and business necessity once a discriminatory effect is established.
• Employees may still prevail by demonstrating a less discriminatory alternative.
• The amendment does not narrow protections under the New York Human Rights Law and does not shield intentional discrimination.

On December 19, 2025, Governor Hochul signed SB S8338 clarifying that employment discrimination can be established based solely on a discriminatory effect, even without discriminatory intent. Effective immediately, the statute codifies a burden-shifting framework: the complainant must show a discriminatory effect; the respondent must then prove job relatedness and business necessity; and the complainant may still prevail by showing that the business need could be met by an alternative with less discriminatory effect. A showing of business necessity does not defeat claims of intentional discrimination, and the amendment does not limit broader interpretations under the New York Human Rights Law.