Apr 24, 2015 Employment Discrimination

Mayor de Blasio Signs New York City Law Establishing Formal Tester Program to Investigate Discrimination

On April 20, 2015, Mayor Bill de Blasio signed into law a bill requiring the New York City Commission on Human Rights (NYCCHR) to establish a tester program to investigate local employers, labor organizations, and employment agencies for employment discrimination.  (Intro. 690-A).[1] Under this program, the NYCCHR will send matched pairs of testers to apply for, inquire about, or express interest in, the same job.  These testers will be assigned similar credentials, but will differ in a protected characteristic (e.g., actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or other characteristic protected under the New York City Human Rights Law).  The NYCCHR will then evaluate these testers’ experiences and assess whether discriminatory practices were used during the hiring process.

These tester investigations will begin on or before October 1, 2015, and no fewer than five investigations must be conducted by the NYCCHR over a one-year period.  The NYCCHR will then submit a report to the New York City Council Speaker by March 1, 2017, which will include: (i) the number of matched pair tests completed; (ii) identification of the industry of the employer where each completed matched pair test was conducted; (iii) the protected class variable used in each matched pair test; (iv) the number of incidents of actual or perceived discrimination by protected class for each such investigation; and (v) a description of any incidents of discrimination detected in the course of such investigations (provided that the NYCCHR will not be required to report information that would compromise an ongoing or prospective investigation or prosecution).  Any incidents of actual or perceived discrimination that occur during these NYCCHR investigations will also be referred to the NYCCHR’s law enforcement bureau.     

In light of this new law, employers should:

  • review their job descriptions and job postings, to ensure that they accurately reflect the duties and responsibilities of the positions they describe and the required knowledge, skills, and abilities to perform the positions; and
  • review their hiring procedures to ensure that those involved with the selection process: (i) limit their pre-employment inquiries to subjects that are relevant to an applicant’s qualifications for a position; and (ii) properly document the business reasons for all selection decisions. 

Please do not hesitate to contact any of our attorneys if you have any questions, or need any assistance reviewing your company’s hiring materials and procedures.

[1] A similar law establishing a testing program to investigate housing discrimination was also signed by the Mayor on April 20, 2015 (Intro. 689-A).