On Dec. 19, 2025, Governor Hochul signed into law an important piece of new legislation. Effective as of that date, New York State joins New York City in declaring that workers may prove illegal discrimination by showing what is known as a “disparate impact.” This new law strengthens the position of employees who endured workplace policies or practices that, although neutral on their faces, were nevertheless discriminatory in their results. If you have questions about discrimination in the workplace and whether your situation qualifies, be sure you get the reliable answers you need by taking the time to speak to an experienced New York employment discrimination lawyer.
To understand why this amendment is important, it helps to know a bit of background information about discrimination law. Broadly speaking, the law divides illegal discrimination into two large groups. One is disparate treatment, which is sometimes known as adverse treatment. Also known as intentional discrimination, this type of discrimination involves situations in which the employer engages in conduct that amounts to discrimination on its face.
By contrast, disparate impact discrimination, also known as adverse impact or unintentional discrimination, involves scenarios where an employer establishes a policy or practice that is neutral on its face but, as applied, has a disproportionately adverse impact on members of a particular protected group.
Put in practical terms, an employer that has a practice of refusing to hire any job candidates who have a disability is engaging in disparate treatment discrimination. By contrast, say that an employer has a policy of basing retention or promotion decisions on workplace attendance standards. That employer’s policy, while neutral on its face, may have the impact of disproportionately harming workers with disabilities whose chronic conditions require frequent medical appointments or other absences.
Under the New York State Human Rights Law (as amended by Senate Bill 8338), a worker may hold their employer liable even without showing that the employer engaged in intentional discrimination. Even if the employer had no discriminatory intent, it can still be liable if its policies or practices had a disproportionate impact on a protected group.
How Disparate Impact Cases Unfold
In a disparate impact case, the initial burden of proof requires the worker (or job candidate) to identify a policy or practice and show that it had a disproportionate impact on their protected group. Once the worker does that, the burden of proof shifts to the employer to provide the court with a legally sufficient justification for that policy or practice. That entails showing that the policy or practice was job-related and consistent with a business necessity. The worker can still prevail, however, if they can demonstrate that a less discriminatory alternative existed.
This amendment brings the NYSHRL into line with the New York City Human Rights Law and with federal law.
The amendment also comes at an important time, given the expanding use of artificial intelligence (AI) in employment-related decision-making. Research has shown that many AI algorithms are prone to bias because they “learn” from biased data. Even if it had no discriminatory objectives, an employer might be liable under a disparate impact theory if the evidence showed, for example, that its AI resume-reviewing tool consistently downgraded female applicants for a technical job.
Relatively rarely does an employer tell a job candidate, “We are not hiring you because you are a woman,” (or Black, or Muslim, or gay, or older, etc.) Nevertheless, when that employer creates systems that tip the scales against female job candidates, it may be just as guilty of illegal discrimination as if it had engaged in intentional misconduct. When discrimination – whether intentional or unintentional – has harmed you, you need a powerful and experienced advocate to fight for you. Get in touch with the New York employment discrimination attorneys at Phillips & Associates, PLLC to find out how our team can help you get justice. To learn more, contact us online or call (866) 229-9441 to schedule a free, confidential consultation today.