On March 13, 2013, the New York City Council overrode Mayor Bloomberg’s veto of legislation amending the City’s anti-discrimination law to also prohibit New York City employers from basing employment decisions on a job applicant’s unemployed status. This new law, Int. No. 814, will take effect on June 11, 2013.
The law joins a trend in legislation that prohibits discrimination against the unemployed. New Jersey, Oregon and Chicago have all outlawed advertisements that state that applicants who are currently unemployed need not apply.
Unlike laws already in effect, this law allows job applicants to bring a private right of action and the possibility to recover generous remedies. This makes New York City the first jurisdiction in the country to allow unsuccessful job applicants the right to sue over claims that they were rejected for a position because of their unemployment status.
The unemployment discrimination law prohibits New York City employers with at least four employees (including independent contractors), as well as employment agencies and their agents, from making an employment decision based on an applicant’s unemployment status.
Employment decisions include hiring, compensation or the terms, conditions or privileges of employment. An unemployed applicant is defined as an individual that does not have a job, is available for work, and is seeking employment. Employers, employment agencies, and their agents are also generally prohibited from publishing, in print or in any other medium, any advertisement for a vacant position in New York City that states or implies that being currently employed is a requirement or qualification for the vacant position, or that applicants who are currently unemployed will not be considered for employment.
Employers, employment agency, or their agents may:
Consider an applicant’s unemployment if they have a substantially job-related reason for doing so, and also inquire into the circumstances surrounding an applicant’s separation from prior employment; Consider any substantially job-related qualifications when making employment decisions; Publish, in print or in any other medium, an advertisement for any vacant position in New York City that announces substantially job-related qualifications; and/or Limit consideration for vacant positions to current employees of the employer, or give priority to individuals (with respect to hiring and compensation or terms, conditions or privileges of employment) based on an individual’s level of experience.
CLAIMS AND PENALTIES
Any applicant who believes that he/she has been discriminated against in violation of this law has the right to either:
File a complaint with the New York City Commission on Human Rights (the “Commission”); or File a private civil action in court. If discrimination can be proven, the Commission has the authority to award remedies including but not limited to issuing a cease and desist order, and/or requiring the employer to hire the applicant, provide back and front pay, or pay compensatory damages. The Commission can also impose civil penalties of $125,000, and up to $250,000 if the employer’s actions are found to be “willful, wanton or malicious.”
Failure to comply with an order from the Commission could result in a civil penalty of up to $50,000 and additional civil penalties of up to $100 a day. Also, an employer who violates a Commission order can be found guilty of a misdemeanor punishable by up to one year in prison or by fine of up to $10,000, or both. Finally, the Commission may initiate a private civil action on behalf of any applicant who believes they have been discriminated against.
Private civil action that is brought in court permits an applicant the opportunity to sue for compensatory and punitive damages, injunctive relief, and request attorney’s fees and costs.
The law also expressly allows for disparate impact claims, which provides an unsuccessful applicant the ability to claim that a prospective employer’s policy or practice works to prevent the hiring of unemployed applicants. Under this claim, an unsuccessful applicant does not have to show that a prospective employer intended to discriminate against unemployed applicants, but is permitted to rely on statistical evidence to demonstrate that discrimination likely occurred.
Retaliation and whistleblowing protections have also been included for employees who:
Oppose any practices that are made unlawful by the law; File a complaint, testify, or assist in any proceeding under this law; Commence a private civil action under this law; or Assist the investigation of any claims made under this law.
STAYING PROACTIVE TO AVOID LIABILITY
Although there are very serious consequences for violations of this law, New York City employers have until June 11, 2013 to prepare before the law goes into effect. All employers who are affected by this law should take this opportunity to carefully scrutinize their job advertisements and hiring procedures, train recruiters and interviewers, and make sure there is a substantially job-related reason for discussing applicant’s unemployment status. Taking these proactive steps now will pay off when this law takes effect.