Bill S2965-2013

Directs New York state urban development corporation to implement affirmative action programs for women and women-owned businesses to afford equal opportunity

Requires the state urban development corporation and each of its subsidiaries to take affirmative action so as to assure that business enterprises owned and operated by women be given an equal opportunity to participate in the planning, construction and operation of projects of the corporation or its subsidiaries; provides that the UDC shall from time to time gather information and make written findings, if warranted, with respect to areas of the state where its projects are located, concerning the effects of past discrimination against women and business enterprises owned and operated by women; provides that the UDC shall adopt, in writing and implement such actions to achieve and maintain equal employment and business opportunity as it may reasonably deem necessary and appropriate.

Details

Actions

  • Jan 8, 2014: REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS
  • Jan 28, 2013: REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS

Memo

BILL NUMBER:S2965

TITLE OF BILL: An act to amend the New York state urban development corporation act, in relation to certain employment discrimination

SUMMARY OF PROVISIONS: The purpose of this bill is to authorize the New York State Urban Development Corporation (UDC) and its subsidiaries to take affirmative action an behalf of women and women-owned business enterprises. In Section 1 of the bill, the Legislature finds and declares that women and women-owned business enterprises have been the victim of past discrimination, that they have been denied equal opportunity to participate in and contribute to the State's economy, that the State has a compelling interest in eradicating the effects of such past discrimination and that in some instances the effects of such discrimination can only be overcome by the use of numerical goals and other temporary preferential methods. The Legislature also finds that the UDC has the expertise necessary to gather data concerning discrimination and to formulate and implement effective affirmative action programs in accordance with such information.

Section 2 provides that this bill is to be deemed an exercise of the police and procurement powers and in fulfillment of the State Constitution's provisions regarding civil rights. Section 3 provides, in summary, as follows: 1. The UDC Act (Unconsolidated Laws, sections 6251 through 6285) is amended by adding a new section 4 which directs the UDC to take affirmative action on behalf of women and women-owned business enterprises. 2. In areas where its projects are located, UDC is authorized to make findings with respects to the effects of past discrimination against women. 3. UDC is authorized to take such remedial measures to achieve and maintain equal employment and business opportunities as it deems necessary and appropriate. Such actions may include the establishment of counseling and training programs, affirmative recruitment and community liaison efforts and the temporary use of numerical goals and special bid conditions. 4. No remedial measure may mandate the discharge of any work because of sex. 5. In instances where public bidding is required, UDC is directed to consider the ability and the willingness of a bidder to provide for the participation of women and women-owned business enterprises in determining whether the bidder is responsible. 6. UDC and its subsidiaries are authorized to require that any person or entity involved in a UDC project comply with its affirmative action program. 7. UDC is required to include in its annual report a description of its activities under section 4{ 12) and is authorized to promulgate regulations to effect the purposes of the bill.

JUSTIFICATION: Existing law does not contain a sufficient basis for the establishment of affirmative action programs to increase the level of participation by women and women-owned business enterprises where such programs include the use of numerical goals and other temporary preferential methods.

This bill is intended to remedy this situation and provide the appropriate legislative authority for UDC to implement affirmative action programs for women and women-owned business enterprises containing such provisions.

LEGISLATIVE HISTORY: 03/16/09 REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS 05/20/09 1ST REPORT CAL. 423 05/26/09 2ND REPORT CAL. 05/27/09 ADVANCED TO THIRD READING 07/16/09 COMMITTED TO RULES 01/06/10 REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS 01/14/11 REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS 01/04/12 REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS

FISCAL IMPLICATIONS:

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 2965 2013-2014 Regular Sessions IN SENATE January 28, 2013 ___________
Introduced by Sen. GIPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Corporations, Authorities and Commissions AN ACT to amend the New York state urban development corporation act, in relation to certain employment discrimination THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative intent. It is hereby found and declared that the state has had a leadership role in maximizing equal opportunity in employment for all its citizens, but that in many communities in the state, because of past sex discrimination, women and women-owned busi- ness enterprises do not have such equal opportunity. It is further found and declared that as a result of such past discrimination, many women and women-owned business enterprises do not enjoy full opportunity to participate in and contribute to the state's economy, or to obtain the experience necessary to become more productive contributors to the economy. It is further found and declared that the lack of opportunity to participate in public contracts tends to decrease the pool of available labor, thereby adversely affecting the cost and progress of such public contracts. It is further found and declared that the state has a compelling interest in eradicating the effects of such past discrimination, and that well chosen efforts at eradication result in a gain which substan- tially outweighs any detrimental effects. It is further found and declared that the patterns, causes, effects and victims of such past discrimination have varied and do vary widely among communities, occupations and industries, and that no one approach to remedying the effects of this discrimination will be most effective in all circumstances, but rather that, where feasible, corrective programs should be tailored to the particular situation.
It is further found and declared that under some circumstances equal opportunity can be afforded to women and women-owned business enter- prises, only by the temporary use of preferential methods such as numer- ical goals for participation by women and women-owned enterprises, and that such methods can and should be carefully chosen, using statistical and other information where available, so that the methods are employed only where they are considered necessary to achieve equal opportunity, and have the least practicable adverse impact on men and men-owned busi- nesses. It is further found and declared that the New York state urban devel- opment corporation and its subsidiaries have developed extensive know- ledge and expertise in the areas of manpower development and training, urban blight and revitalization, affirmative action, the letting of public contracts, the construction of public projects, and the statis- tical analysis of employment and economic patterns throughout the state. It is further found and declared that the New York state urban devel- opment corporation and its subsidiaries have the requisite knowledge and expertise to examine employment and economic patterns in particular communities, occupations and industries, and to ascertain whether the effects of past discrimination persist, and if so, how they might best be remedied. It is further found and declared that affirmative action is consistent with, and a necessary component of fulfilling, the New York state urban development corporation's mission of revitalizing the blighted urban areas and the economy of the state, and of improving the conditions of the low income residents of the state. Therefore, it is hereby found and declared that it is in the public interest and necessary and desirable that the New York state urban development corporation, for itself and for its subsidiaries, develop and implement affirmative action programs where and as necessary for their projects, applicable to the corporation and its subsidiaries, and their projects and activities, and their contractors, subcontractors, consultants, vendees and lessees, based where necessary upon analysis of the circumstances in the relevant communities, occupations and indus- tries, with the goal of ensuring equal opportunity for women and busi- ness enterprises actually owned and operated by women. S 2. This act shall be deemed an exercise of the police power and the procurement power of the state, and in fulfillment of the provisions of the constitution of the state concerning civil rights. S 3. Section 4 of section 1 of chapter 174 of the laws of 1968, constituting the New York state urban development corporation act, is amended by adding a new subdivision 12 to read as follows: (12) THE CORPORATION AND EACH OF ITS SUBSIDIARIES, WHETHER CREATED SPECIALLY BY STATUTE OR OTHERWISE, SHALL TAKE AFFIRMATIVE ACTION IN WORKING WITH CONSTRUCTION FIRMS, CONTRACTORS, SUBCONTRACTORS, CONSULT- ANTS AND OTHER FIRMS, TO THE END THAT WOMEN AND BUSINESS ENTERPRISES OWNED AND OPERATED BY WOMEN, SHALL BE AFFORDED EQUAL OPPORTUNITY TO PARTICIPATE IN THE PLANNING, CONSTRUCTION AND OPERATION OF PROJECTS OF THE CORPORATION AND ITS SUBSIDIARIES, AND IN ALL OTHER ACTIVITIES OF THE CORPORATION AND ITS SUBSIDIARIES. TOWARD THIS END: (A) THE CORPORATION SHALL FROM TIME TO TIME GATHER INFORMATION AND MAKE WRITTEN FINDINGS, IF WARRANTED, WITH RESPECT TO THE AREAS OF THE STATE WHERE ITS PROJECTS ARE LOCATED, CONCERNING THE EFFECTS OF ANY PAST DISCRIMINATION AGAINST WOMEN AND BUSINESS ENTERPRISES OWNED AND OPERATED BY WOMEN. (B) SUCH FINDINGS MAY, BUT NEED NOT BE BASED, IN WHOLE OR IN PART, UPON STATISTICS INDICATING THAT CERTAIN WOMEN OR BUSINESS ENTERPRISES
OWNED AND OPERATED BY WOMEN HAVE A DISPROPORTIONATELY LOW PARTICIPATION IN RELEVANT OCCUPATIONS OR INDUSTRIES IN THE AREA, RELATIVE TO THEIR PROPORTION IN THE RELEVANT POPULATION OR LABOR FORCE. (C) THE CORPORATION SHALL ADOPT, IN WRITING, AND IMPLEMENT SUCH ACTIONS TO ACHIEVE AND MAINTAIN EQUAL EMPLOYMENT AND BUSINESS OPPORTU- NITY AS IT MAY REASONABLY DEEM NECESSARY AND APPROPRIATE. IN APPROPRIATE INSTANCES, THESE ACTIONS MAY INCLUDE, WITHOUT LIMITATION, AFFIRMATIVE EFFORTS AT RECRUITMENT, COUNSELLING, TRAINING, AND COMMUNITY LIAISON, AND WHEN FINDINGS OF DISCRIMINATION HAVE BEEN MADE, AND NOTWITHSTANDING ANY OTHER PROVISION OF STATE OR LOCAL LAW, THE TEMPORARY USE OF ATTAIN- ABLE PREFERENTIAL METHODS TO ENSURE THAT WOMEN AND BUSINESS ENTERPRISES ACTUALLY OWNED AND OPERATED BY WOMEN MAY PARTICIPATE FULLY IN THE PLAN- NING, CONSTRUCTION AND OPERATION OF THE APPLICABLE PROJECT, AND IN THE OCCUPATIONS AND INDUSTRIES WHICH PARTICIPATE IN SUCH PROJECT. AS USED IN THE PRECEDING SENTENCE, THE TERM "OWNED" MEANS BONA FIDE OWNERSHIP OF AT LEAST FIFTY PER CENTUM OF THE BUSINESS ENTERPRISE, AND THE TERM "OPER- ATED" MEANS THE CONTROL OF THE MANAGEMENT AND DAILY OPERATIONS OF SUCH BUSINESS ENTERPRISE. NO METHOD SELECTED SHALL MANDATE THE DISCHARGE OF ANY WORKER BECAUSE OF HIS OR HER SEX. WHERE APPROPRIATE BECAUSE OF DIFFERING CIRCUMSTANCES, THE CORRECTIVE ACTIONS CHOSEN MAY DIFFER AMONG AREAS AND PROJECTS, AND WITHIN PROJECTS AMONG OCCUPATIONS, INDUSTRIES, AND CONTRACTS. NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO REQUIRE THE HIRING OF UNQUALIFIED WORKERS, OR TO AUTHORIZE THE AWARDING OF CONTRACTS TO ENTERPRISES THAT ARE NOT RESPONSIBLE AND RELIABLE AND QUAL- IFIED TO PERFORM THE WORK REQUIRED. (D) IN DETERMINING WHETHER A BIDDER OR PROPOSED CONTRACTOR FOR ANY TYPE OF WORK LET OR SERVICES PROCURED BY THE CORPORATION OR ITS SUBSID- IARIES IS RESPONSIBLE, THE CORPORATION AND ITS SUBSIDIARIES SHALL CONSIDER (BUT NEED NOT LIMIT THEIR CONSIDERATION TO) THE ABILITY AND WILLINGNESS OF SUCH BIDDER OR PROPOSED CONTRACTOR TO PROVIDE, AND TO COMMIT TO PROVIDE, FOR PARTICIPATION OF WOMEN AND BUSINESS ENTERPRISES ACTUALLY OWNED AND OPERATED BY WOMEN, TO THE EXTENT DETERMINED NECESSARY PURSUANT TO THIS SUBDIVISION, AND IN ACCORDANCE WITH THE PROCEDURES ESTABLISHED HEREIN. (E) THE CORPORATION AND ITS SUBSIDIARIES, IF NECESSARY OR CONVENIENT TO ACHIEVE THE PURPOSES OF THIS SUBDIVISION, MAY IMPOSE THROUGH CONTRACT, LEASE OR CONVEYANCE PROVISIONS OR OTHERWISE, THE AFFIRMATIVE ACTION MEASURES UNDERTAKEN PURSUANT TO THIS SUBDIVISION UPON ANY PERSONS OR ENTITIES THAT PLAN, CONSTRUCT OR OPERATE ITS PROJECTS, INCLUDING BUT NOT LIMITED TO THOSE PROJECTS WHOSE CONSTRUCTION IS COMPLETE, AND WHETH- ER OR NOT THE CORPORATION OR ANY OF ITS SUBSIDIARIES RETAINS A REAL PROPERTY INTEREST IN ANY PORTION OF THE PROJECT. (F) THE CORPORATION IN ITS ANNUAL REPORT SHALL FULLY DESCRIBE ITS ACTIVITIES PURSUANT TO THIS SUBDIVISION, SO THAT THE LEGISLATURE MAY FROM TIME TO TIME REASSESS ITS DELEGATION TO THE CORPORATION AND ITS SUBSIDIARIES OF FACT-FINDING AND IMPLEMENTING RESPONSIBILITIES CONCERN- ING AFFIRMATIVE ACTION. (G) THE CORPORATION MAY FROM TIME TO TIME PROMULGATE PROCEDURES, REGU- LATIONS AND INTERPRETATIONS NECESSARY OR CONVENIENT TO EFFECT THE PURPOSES OF THIS SUBDIVISION. SUCH PROMULGATIONS SHALL NOT BE DEEMED TO BE "RULES" FOR PURPOSES OF CHAPTER 167 OF THE LAWS OF 1975, AS AMENDED. S 4. If any provisions of this act, or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this act or the applica- tion of such provision to any other person or circumstance, but shall be
confined in its operation to the provision, person and circumstance directly involved in the controversy in which such judgment shall have been rendered. S 5. This act shall take effect immediately.

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