§ 296-A — Unlawful discriminatory practices in relation to credit

§ 296-a. Unlawful discriminatory practices in relation to credit. 1.\nIt shall be an unlawful discriminatory practice for any creditor or any\nofficer, agent or employee thereof:\n a. In the case of applications for credit with respect to the\npurchase, acquisition, construction, rehabilitation, repair or\nmaintenance of any housing accommodation, land or commercial space to\ndiscriminate against any such applicant because of the race, creed,\ncolor, national origin, citizenship or immigration status, sexual\norientation, gender identity or expression, military status, age, sex,\nmarital status, status as a victim of domestic violence, disability, or\nfamilial status of such applicant or applicants or any member,\nstockholder, director, officer or employee of such applicant or\napplicants, or of the prospective occupants or tenants of such housing\naccommodation, land or commercial space, in the granting, withholding,\nextending or renewing, or in the fixing of the rates, terms or\nconditions of, any such credit;\n b. To discriminate in the granting, withholding, extending or\nrenewing, or in the fixing of the rates, terms or conditions of, any\nform of credit, on the basis of race, creed, color, national origin,\ncitizenship or immigration status, sexual orientation, gender identity\nor expression, military status, age, sex, marital status, status as a\nvictim of domestic violence, disability, or familial status;\n c. To use any form of application for credit or use or make any record\nor inquiry which expresses, directly or indirectly, any limitation,\nspecification, or discrimination as to race, creed, color, national\norigin, citizenship or immigration status, sexual orientation, gender\nidentity or expression, military status, age, sex, marital status,\nstatus as a victim of domestic violence, disability, or familial status;\n d. To make any inquiry of an applicant concerning his or her capacity\nto reproduce, or his or her use or advocacy of any form of birth control\nor family planning;\n e. To refuse to consider sources of an applicant's income or to\nsubject an applicant's income to discounting, in whole or in part,\nbecause of an applicant's race, creed, color, national origin,\ncitizenship or immigration status, sexual orientation, gender identity\nor expression, military status, age, sex, marital status, status as a\nvictim of domestic violence, childbearing potential, disability, or\nfamilial status;\n f. To discriminate against a married person because such person\nneither uses nor is known by the surname of his or her spouse.\n This paragraph shall not apply to any situation where the use of a\nsurname would constitute or result in a criminal act.\n 2. Without limiting the generality of subdivision one of this section,\nit shall be considered discriminatory if, because of an applicant's or\nclass of applicants' race, creed, color, national origin, citizenship or\nimmigration status, sexual orientation, gender identity or expression,\nmilitary status, age, sex, marital status, status as a victim of\ndomestic violence, disability, or familial status, (i) an applicant or\nclass of applicants is denied credit in circumstances where other\napplicants of like overall credit worthiness are granted credit, or (ii)\nspecial requirements or conditions, such as requiring co-obligors or\nreapplication upon marriage, are imposed upon an applicant or class of\napplicants in circumstances where similar requirements or conditions are\nnot imposed upon other applicants of like overall credit worthiness.\n 3. It shall not be considered discriminatory if credit\ndifferentiations or decisions are based upon factually supportable,\nobjective differences in applicants' overall credit worthiness, which\nmay include reference to such factors as current income, assets and\nprior credit history of such applicants, as well as reference to any\nother relevant factually supportable data; provided, however, that no\ncreditor shall consider, in evaluating the credit worthiness of an\napplicant, aggregate statistics or assumptions relating to race, creed,\ncolor, national origin, citizenship or immigration status, sexual\norientation, gender identity or expression, military status, sex,\nmarital status, status as a victim of domestic violence or disability,\nor to the likelihood of any group of persons bearing or rearing\nchildren, or for that reason receiving diminished or interrupted income\nin the future.\n 3-a. It shall not be an unlawful discriminatory practice to consider\nage in determining credit worthiness when age has a demonstrable and\nstatistically sound relationship to a determination of credit\nworthiness.\n 4. a. If so requested by an applicant for credit, a creditor shall\nfurnish such applicant with a statement of the specific reasons for\nrejection of the applicant's application for credit.\n b. If so requested in writing by an individual who is or was married,\na creditor or credit reporting bureau shall maintain in its records a\nseparate credit history for any such individual. Such separate history\nshall include all obligations as to which such bureau has notice with\nrespect to which any such person is or was individually or jointly\nliable.\n 5. No provision of this section providing spouses the right to\nseparately apply for credit, borrow money, or have separate credit\nhistories maintained shall limit or foreclose the right of creditors,\nunder any other provision of law, to hold one spouse legally liable for\ndebts incurred by the other.\n 6. Any person claiming to be aggrieved by an unlawful discriminatory\npractice engaged in by a regulated creditor, in lieu of the procedure\nset forth in section two hundred ninety-seven of this article, may file\na verified complaint with the superintendent, as provided hereinafter;\nprovided, however, that the filing of a complaint with either the\nsuperintendent or the division shall bar subsequent recourse to the\nother agency, as well as to any local commission on human rights, with\nrespect to the grievance complained of.\n 7. In the case of a verified complaint filed with the superintendent\nthe following procedures shall be followed:\n a. After receipt of the complaint, the superintendent shall make a\ndetermination within thirty days of whether there is probable cause to\nbelieve that the person named in the complaint has engaged in or is\nengaging in an unlawful discriminatory practice. If the superintendent\ndetermines there is no such probable cause, the complaint shall be\ndismissed. If the superintendent determines that there is such probable\ncause, he or she shall attempt to resolve such complaint by conference\nand conciliation. If conciliation is achieved, the terms shall be\nrecorded in a written agreement signed by the creditor and complainant,\na copy of which shall be forwarded to the commissioner.\n b. If conciliation is not achieved, the superintendent or his or her\ndesignated representative shall conduct a hearing with respect to the\nalleged violation of this section. All interested parties shall be\nentitled to adequate and timely notice of the hearing. Such parties\nshall have the right to be represented by counsel or by other\nrepresentatives of their own choosing; to offer evidence and witnesses\nin their own behalf and to cross-examine other parties and witnesses; to\nhave the power of subpoena exercised in their behalf; and to have access\nto a written record of such hearing. The superintendent or his or her\nrepresentative shall not be bound by the strict rules of evidence\nprevailing in courts of law or equity. The testimony taken shall be\nunder oath and a record shall be made of the proceedings. A written\ndecision shall be made by the superintendent or his or her designated\nrepresentative separately setting forth findings of fact and conclusions\nof law. A copy of such decision shall be forwarded to the commissioner.\n c. If the superintendent finds that a violation of this section has\noccurred, the superintendent shall issue an order which shall do one or\nmore of the following:\n (1) impose a fine in an amount not to exceed ten thousand dollars for\neach violation, to be paid to the people of the state of New York;\n (2) award compensatory damages to the person aggrieved by such\nviolation;\n (3) for a claim of sex discrimination only, award reasonable\nattorney's fees attributable to such claim to any prevailing party;\nprovided, however, that a prevailing respondent or defendant in order to\nrecover such reasonable attorney's fees must make a motion requesting\nsuch fees and show that the action or proceeding brought was frivolous.\nIn no case shall attorney's fees be awarded to the department, nor shall\nthe department be liable to a prevailing party for attorney's fees. In\norder to find the action or proceeding to be frivolous, the\nsuperintendent must find in writing one or more of the following:\n (a) the action or proceeding was commenced, used or continued in bad\nfaith, solely to delay or prolong the resolution of the litigation or to\nharass or maliciously injure another; or\n (b) the action or proceeding was commenced or continued in bad faith\nwithout any reasonable basis and could not be supported by a good faith\nargument for an extension, modification or reversal of existing law. If\nthe action or proceeding was promptly discontinued when the party or\nattorney learned or should have learned that the action or proceeding\nlacked such a reasonable basis, the court may find that the party or the\nattorney did not act in bad faith.\n (4) require the regulated creditor to cease and desist from such\nunlawful discriminatory practices;\n (5) require the regulated creditor to take such further affirmative\naction as will effectuate the purposes of this section, including, but\nnot limited to, granting the credit which was the subject of the\ncomplaint.\n d. Any complainant, respondent or other person aggrieved by any order\nor final determination of the superintendent may obtain judicial review\nthereof.\n 8. Where the superintendent makes a determination that a regulated\ncreditor has engaged in or is engaging in discriminatory practices, the\nsuperintendent is empowered to issue appropriate orders to such creditor\npursuant to the banking law. Such orders may be issued without the\nnecessity of a complaint being filed by an aggrieved person.\n 9. Whenever any creditor makes application to the superintendent of\nfinancial services to take any action requiring consideration by the\nsuperintendent of the public interest and the needs and convenience\nthereof, or requiring a finding that the financial responsibility,\nexperience, charter, and general fitness of the applicant, and of the\nmembers thereof if the applicant be a co-partnership or association, and\nof the officers and directors thereof if the applicant be a corporation,\nare such as to command the confidence of the community and to warrant\nbelief that the business will be operated honestly, fairly, and\nefficiently, such creditor shall certify to the superintendent\ncompliance with the provisions of this section. In the event that the\nrecords of the department of financial services show that such creditor\nhas been found to be in violation of this section, such creditor shall\ndescribe what action has been taken with respect to its credit policies\nand procedures to remedy such violation or violations. The\nsuperintendent shall, in approving the foregoing applications and making\nthe foregoing findings, give appropriate weight to compliance with this\nsection.\n 10. Any complaint filed with the superintendent pursuant to this\nsection shall be so filed within one year after the occurrence of the\nalleged unlawful discriminatory practice.\n 11. The superintendent is hereby empowered to promulgate rules and\nregulations hereunder to effectuate the purposes of this section.\n 12. The provisions of this section, as they relate to age, shall not\napply to persons under the age of eighteen years.\n