New York City Bans Discrimination Against The Unemployed

On June 11, New York City became the latest of a growing minority of jurisdictions to ban employment discrimination on the basis of an individual’s unemployment status.  The bill was passed by City Council then vetoed by Mayor Bloomberg, but Council overrode the veto in March.  The law amends the New York City Human Rights Law and generally bars employers from basing decisions related to hiring, compensation or other terms of employment on an applicant’s unemployment status – essentially adding unemployment to the list of protected classifications in New York City.  The law also bars employers from making current employment a application requirement (unless there is a “substantially job-related reason for doing so” – which seems unlikely for most professions).  While New York City wasn’t the first to pass this type of bill (Washington, D.C., New Jersey and Oregon have similar laws), this bill is recognized as the most far-reaching law barring discrimination because of an individual’s unemployment status.

To be covered by the new law, an individual must (i) not have a job, (ii) be available for work) and (iii) be seeking employment.  On the employer side, the law applies to all companies with four or more employees that operate within New York City (though the ban on advertising current employment as a qualification requirement applies to all companies, regardless of size).

While the law generally prohibits employers from basing hiring and other decisions on an applicant’s job status, there are a few exceptions:

  • An employer (or employment agency) may consider an applicant’s employment status if there is a substantially job-related reason for doing so.  (This is obviously pretty ambiguous, but it seems like it will be a tough requirement for most employers to meet.)  
  • An employer may inquire into the circumstances of an applicant’s separation from prior employment.
  • An employer may base compensation and other benefits on an applicant’s actual level of experience.
  • An employer may give priority to its current employees.

The law also imposes liability if a company’s seemingly neutral policy has a “disparate impact” on the unemployed.  That means that an applicant does not necessarily have to show that the employer intended to discriminate against the unemployed, just that the employer had a policy that statistically disfavored the unemployed.

Individuals that feel that they have been discriminated against because of their employment status may either file a complaint with the New York City Commission on Human Rights or file a complaint in court.  New York City is unique in providing individuals with what is known as a private right of act; opponents of the bill had hoped that enforcement would be limited to the filing a complaint with the Commission where they could have more control over the process.

If you believe that you may have been the victim of discrimination because you are unemployed and would like to be connected with an attorney that can help you, please fill out the form below and we will try to assist you in locating an attorney that can help you.

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About Publius

"Publius” a former labor and employment litigation attorney in New York City with experience representing both management and employees in a broad range of labor and employment matters. As a "reformed" attorney, Publius is looking to provide the people of New York City with information that will educate them as to their legal rights and, if appropriate, connect individuals with attorneys that can assist them.
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