New York City Prohibits Discrimination Against the Unemployed

New York City has expanded the scope of its Human Rights Law (“NYCHRL”) to prohibit job discrimination based upon a job applicant’s status as unemployed. The amendments to the NYCHRL define the term “unemployed” to mean someone “not having a job, being available for work, and seeking employment.” The amendments, which will become effective on June 11, 2013, are groundbreaking in that they make New York City the first jurisdiction in the United States to provide a private right of action for discrimination based on an applicant’s “unemployed” status. If successful in pursuing such claims, denied job applicants may recover compensatory and punitive damages, as well as their attorneys’ fees and costs. In light of this, New York City employers should immediately begin preparing for these coming changes by reviewing their hiring practices, as well as their job advertisements and postings.

Overview of the Amendments to the NYCHRL

The new amendments prohibit employers covered by the NYCHRL (i.e., those employers operating in New York City with 4 or more employees) from considering an applicant’s “unemployment status” with respect to “hiring, compensation or terms of employment.” Furthermore, the amendments prohibit job advertisements or postings, which indicate “being currently employed is a requirement or qualification for the job” or that unemployed individuals need not apply because they will not be considered.

Unlike New Jersey, Oregon, or Washington, D.C., which have passed similar laws prohibiting discrimination against the unemployed, the New York City statute goes one step further in providing persons aggrieved by a violation of the law with a private right of action. Such individuals can file a complaint with the New York City Commission on Human Rights, or commence an action in court against the employer. Like any other plaintiffs alleging discrimination under the NYCHRL, they will be entitled to collect compensatory and punitive damages, as well as their attorneys’ fees should they succeed in establishing their claims. The statute of limitations for such claims is three years and it runs from the date of the alleged discrimination.

While the amendments to the NYCHRL are expansive, they are not limitless. There is nothing in the amendments which prohibit an employer from:

• considering an applicant’s status as unemployed “where there is a substantially job-related reason for doing so” or “inquiring into the circumstances surrounding an applicant’s separation from prior employment;”
• considering or advertising any substantially job-related qualifications such as holding a 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;
• determining that only its current employees will be considered for employment or given priority for employment; or
• determining compensation or terms and conditions of employment based on the applicant’s actual amount of experience.

Employer Takeaways

As of June 11, 2013, persons who are “unemployed” – currently 9.1% of the New York City population – will represent a new class of potential plaintiffs who may file discrimination lawsuits. Any employers with a workforce in New York City should immediately suspend any practices of barring applicants merely because they are unemployed. In addition, employers should train managers, as well personnel in their Human Resources Departments, on the changes to the law to ensure that the hiring process complies with the new law. Finally, New York City employers should immediately review their job postings (both in print and online) to ensure they comply with the new amendments to the law.

For assistance with matters involving compliance with the New York City Human Rights Law, please contact an attorney in the Gibbons Employment & Labor Law Department.