June 11, 2013 is the date that New York City’s new law prohibiting discrimination in the hiring process of persons based on employment status finally goes into effect, specifically focusing on the “unemployed.” The legislative intent behind this amendment of the New York City Human Rights Law (“NYCHRL”) is steeped in the reality that the unemployed are having an extremely difficult time gaining new employment because of: 1) extended time they’ve been out of the workforce; or 2)the preconceived notion of an employer that a prospective hire is unemployed because they are a “bad” employee, or for several other unsubstantiated and predetermined reasons an employer may have for discriminating against someone for being unemployed. This amendment to the NYCHRL will constitute another beneficial addition to the already broad and expansive anti-discrimination laws of New York City.
In order to truly understand what this amendment will prohibit, we need to examine the definition of what unemployment means. “Unemployment” under the NYCHRL is defined as “not having a job, being available for work, and seeking employment.” The amendment prohibits an employer from basing “an employment decision with regard to hiring, compensation or the terms, conditions or privileges of employment on an applicant’s unemployment.” The amendment additionally forbids employment advertisements that require current employment as a qualification for employment or disqualify applicants based on previous unemployment. Lastly, the amendment further prohibits policies and practices that may have a disparate impact on unemployed potential hires, unless the employer proves as an affirmative defense that the policy is based on a substantially job-related qualification or the policy or practice does not contribute to the disparate impact.
As always, the NYCHRL applies to employers that employ four or more individuals (whether as employees or independent contractors (who are not themselves employers)), and where the impact of the employer’s alleged discriminatory conduct will be felt within the boundaries of New York City. Additionally, the NYCHRL provides for a broad array of remedies, including unlimited compensatory and punitive damages and attorneys fees awards.
Seeing that this is a brand new law, it’s unclear how employers will react – if they will adjust their interviewing or advertising processes proactively or wait until it’s too late and they’re being hauled into court. There are also many unresolved questions since the law has not been litigated in court – does the law only bar considering current unemployment, or does it also bar taking into account a history of unemployment? What are examples of a substantially job-related reason for considering unemployment? Many questions are left unanswered about this new amendment to the NYCHRL, but what’s clear is the intent behind this legislation is virtuous and will hopefully provide much needed protection to the unemployed.
As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.