May 14, 2013 Employment Discrimination

The New York City Human Rights Law Will Soon Protect Against Unemployment Discrimination

Effective June 11, 2013, the New York City Human Rights Law (“NYCHRL”) will protect job applicants against “unemployment” discrimination.  (See Int. Bill No. 814-A.)  The new law defines protected “unemployment” or being “unemployed” as: (a) not having a job; (b) being available for work, and (c) seeking employment.

1.  Prohibitions Against Unemployment Discrimination.   

New York City employers (of any size), employment agencies or their agents cannot publish, in print or in any other medium (unless otherwise permitted by city, state or federal law), an advertisement for any job vacancy in New York City that contains any provision stating or indicating that:

(a)  being currently employed is a requirement or qualification for the job; or

(b)  an employer, employment agency, or agent thereof will not consider individuals for employment because of their unemployed status.

Additionally, New York City employers with four or more employees (including independent contractors), employment agencies or their agents cannot:

(a)  base decisions regarding hiring, compensation or the terms, conditions or privileges of employment on an applicant’s unemployment (i.e., disparate treatment is prohibited); or

(b)  maintain a neutral policy or practice (or a group of policies or practices) that has a discriminatory impact on unemployed individuals, unless they can show that such policy or practice is based on a “substantially job-related qualification” or does not contribute to the discriminatory impact (i.e., disparate impact is prohibited).   

A “substantially job-related qualification” includes, but is not limited to:  a current and valid professional or occupational license; a certificate, registration, permit, or other credential; a minimum level of education or training; or a minimum level of professional, occupational, or field experience. 

Notably, however, an applicant can also prevail on a disparate impact theory if: (a) he or she produces substantial evidence that an alternative policy or practice with less disparate impact is available to the employer, employment agency or their agent; and (b) the entity fails to prove that such alternative policy or practice would not serve the entity as well as the practice at issue. 

2.  Exceptions.

Certain standard employment practices are still permitted under this new law.  Employers, employment agencies and their agents may:

(a)  consider an applicant’s unemployment where there is a substantially job-related reason for doing so;

(b)  inquire into the circumstances surrounding an applicant’s separation from prior employment;

(c)  consider, and include provisions in their job advertisements that contain, any substantially job-related qualifications, including, but not limited to: a current and valid professional or occupational license; a certificate, registration, permit, or other credential; a minimum level of education or training; or a minimum level of professional, occupational, or field experience; and

(d)  determine that only applicants who are currently employed by the employer will be considered for employment or given priority for employment or with respect to compensation or terms, conditions or privileges of employment. 

Employers may also set compensation or terms or conditions of employment for a person based on that person’s actual amount of experience.

The law also does not apply to: (i) the exercise of any right of an employer or employee pursuant to a collective bargaining agreement; and (ii) the actions of certain New York city agencies or entities and the mayor’s office with respect to certain city personnel matters.

3.  Remedies Under the NYCHRL.

An individual who believes that he or she has been discriminated against in violation of the NYCHRL, including on the basis of his or her unemployment status, may:  (a) file a complaint with the New York City Commission on Human Rights within one year of the alleged discriminatory practice; or (b) file a lawsuit directly in court within three years of the alleged discriminatory practice.  If the employer is found liable for discrimination, the Commission can issue a “cease and desist” order, and order, among other things, the hiring or reinstatement of an employee, backpay, front pay, and compensatory damages.  The Commission could also assess a penalty of up to $250,000, depending on the nature of the employer’s actions.  In a private court action, an employer could be held liable for damages, including punitive damages, injunctive relief, attorneys’ fees and costs, and other remedies that may be appropriate under the circumstances. 

4.  Next Steps.

In light of the high unemployment rate in New York City and the broad protections and significant remedies under this new law, employers and employment agencies should take steps now to minimize and mitigate potential unemployment discrimination claims that could be brought against them.  Employers and employment agencies should:

(a)  review (and revise if necessary) all New York City job applications, job postings and other recruiting and hiring materials and policies to ensure that they:

(i)  do not exclude applicants who are unemployed;

(ii)  do not rely on neutral criteria that have an unlawful discriminatory effect on unemployed applicants; and

(iii)  accurately reflect the duties and responsibilities of the position and the knowledge, skills and abilities needed to perform the position.

(b)  train their Human Resources staff and other individuals involved with interviewing and hiring regarding:

(i)  the NYCHRL’s prohibitions on discriminating against an applicant because of the applicant’s unemployment;

(ii)  questions that they can and cannot ask during an interview; and

(iii)  the importance of properly documenting the business reasons for all of their employment decisions.

(c)  communicate with all outside recruiters seeking candidates for New York City positions to ensure that they are aware of the new rules against unemployment discrimination in the NYCHRL.

Please do not hesitate to contact any of our attorneys if you have any questions or need any assistance reviewing your written materials or training your employees regarding the restrictions under this new law.