Effective June 11, 2013, it will be illegal for New York City employers, with at least four employees, to discriminate against persons because of having been unemployed. The new law, passed by the New York City Council over the mayor’s veto, prohibits New York City employers from basing decisions regarding hiring, promotion, compensation, or the terms, conditions or privileges of employment, on a person’s unemployment. Under the law, “unemployed” or “unemployment” is defined as “not having a job, being available for work and seeking employment.” As a result, persons not seeking work between jobs are not protected. The law also makes it illegal to publish an advertisement for any job vacancy in New York City that states or implies that current employment is a requirement or qualification for the job, or that persons currently or previously unemployed will not be considered for employment. The law not only bans discrimination on the basis of unemployment, but also prohibits neutral policies that disproportionately disadvantage a group of unemployed persons. The effect of the law is to put an individual’s unemployment status on equal footing with other protected categories, such as race, age, sex and disability.
Although covered New York City employers will not be able to discriminate based on unemployment, the law does not prohibit an employer from inquiring into the “circumstances surrounding an applicant’s separation from prior employment” or from considering an individual’s unemployment if there is a “substantial job related reason for doing so.” It is also permissible under the law to consider the amount of a person’s work experience in setting compensation or other terms of employment. Employers may also consider and include in advertisements “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.” The law also permits employers to favor current employees when filling vacant positions or setting compensation.
Individuals who believe they have been discriminated against can file a complaint with the New York City Commission on Human Rights. The Commission is empowered to issue a “cease and desist” order, require the employer to hire the applicant, award back and front pay, and impose fines up to $250,000. Alternatively, individuals can directly file a lawsuit in court where they can recover compensatory and punitive damages, injunctive relief and attorneys’ fees and costs.
To reduce the risk of being sued for unemployment discrimination, employers should at a minimum do the following:
(1) ensure that job advertisements in New York City do not require current employment;
(2) review applications, handbooks, policies and hiring procedures to determine if they appear to take into account employment status and revise them as needed to comply with the law;
(3) avoid discussing unemployment during interviews unless there is a substantially job-related reason for doing so; and
(4) inform human resources professionals, and others involved in advertising job vacancies and making hiring and employment decisions in New York City, about the requirements of the new law.