Reminder to NYC Employers: Unemployed in Protected Class Beginning June 11, 2013

As previously reported, the group of individuals protected by the New York City Human Rights Law (“NYCHRL”) has been expanded to cover the status of being “unemployed.” The Amendment to the NYCHRL — which goes into effect June 11, 2013 — prohibits discrimination against job applicants because they are unemployed. The NYCHRL provides for a private right of action against employers.

The NYCHRL — which covers employers with four or more employees — will soon prohibit discrimination in hiring, compensation, or the terms, conditions or privileges of employment based “on an applicant’s employment status.” Based on the Amendment, employers may not advertise for jobs using postings that list current employment as a requirement to be considered.

The Amendment does provide several exceptions that allow employers to consider unemployment status when making employment decisions. Specifically, an employer may take into consideration an individual’s unemployment when: (i) “there is a substantially job-related reason for doing so”; (ii) “inquiring into the circumstances surrounding an applicant’s separation from prior employment”; (iii) considering 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, occupation, or field experience”; or (iv) “determining that only applicants who are currently employed by the employer will be considered for employment or given priority for employment with respect to compensation or terms, conditions or privileges of employment.”

As with the other protections afforded individuals under the NYCHRL, the unemployed also are protected against retaliation for engaging in “protected activity” by reporting or complaining about discrimination that violates the NYCHRL. Therefore, it is forseeable for an applicant to make an internal complaint with the employer who posts the job, and then bootstrap a retaliation claim to the underlying discrimination claim by alleging that the applicant was further barred — or retaliated against — based on the internal complaint. Consequently, when faced with an unsuccessful applicant’s complaint, employers should be careful to conduct a review of the claim and to be able to explain why the employer’s decision was unrelated to the applicant’s complaint.

The Amendment should not be interpreted to prohibit currently lawful hiring strategies. For example, during an interview, the employer can seek information about the applicant’s skills, abilities and experience. Related to the individual’s experience, the employer may ask about the circumstances under which the applicant’s prior employment ended.

Since damages including injuntive relief, back pay, front pay and penalties up to $250,000 are available under the NYCHRL, employers should take the time now to review their hiring policies and job postings to avoid using language that may run afoul of the Amendment. Employers also should inform those responsible for making hiring decisions about the Amendment and that unemployment status alone may not be used to disqualify an applicant.

For questions regarding the Amendment to the NYCHRL and related litigation, please feel free to contact an attorney in the Gibbons Employment & Labor Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.
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