Amendment to New York City Human Rights Law to Prohibit Discrimination Against Unemployed Persons

by Wilson Sonsini Goodrich & Rosati
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Effective June 11, 2013, the New York City Human Rights Law (NYCHRL) will prohibit discrimination against unemployed persons. This amendment to the NYCHRL was passed by the New York City Council on January 23, 2013, as Int. No. 0814-2012 but was vetoed by Mayor Michael Bloomberg on February 22, 2013. Notwithstanding strong protests from employers, the mayor's deputy counselor, and even Mayor Bloomberg himself, the city council overrode the mayor's veto on March 13, 2013.

Prohibited Conduct

With this amendment, the NYCHRL will broadly prohibit employers with four or more workers (including consultants/contractors) operating in New York City from discriminating against unemployed persons—in effect, making unemployment a protected category in New York City. According to the amendment, an unemployed person is someone "not having a job, being available for work, and seeking employment."

Specifically, the new amendment prohibits covered employers from making any employment decision based on an applicant's unemployment status. The obvious application of this provision relates to employee hiring, but there may be other implications, including claims by applicants that a potential employer offered better compensation terms to employed applicants over unemployed applicants. The amendment also prohibits covered employers from publishing, in print or any other medium, a job advertisement that requires current employment, indicates that employment status will be considered as a job qualification, or states that an applicant will not be considered for an open position if unemployed.

Exceptions

The amendment contains certain exceptions to the broad prohibition against discrimination on the basis of unemployment. Covered employers may:

  • consider unemployment where there is a "substantially job-related reason for doing so" (e.g., if a prior separation from employment was for poor job performance);
  • query an applicant about the "circumstances surrounding an applicant's separation from prior employment";
  • restrict applications to, or give priority to, those applicants who currently are employed by the employer; and
  • negotiate and establish "compensation or terms or conditions of employment based on [a] person's actual amount of experience."

Remedies

While other jurisdictions, including New Jersey, also prohibit discrimination on the basis of employment status, the amendment to the NYCHRL is unique in that it permits the individual to either file a complaint with the New York City Human Rights Commission or file a civil action. In a civil action, the plaintiff can recover front and back pay, compensatory and punitive damages, attorneys' fees and costs, and hiring/reinstatement.

Conclusion

Employers should remind hiring managers, human resources personnel, and third-party recruiters acting on their behalf about these new restrictions. Employers also should review all job postings and employment applications to ensure that they do not run afoul of this amendment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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