On March 13, 2013, the New York City Council expanded the scope of the New York City Human Rights Law’s already-broad anti-discrimination provisions to prohibit discrimination based upon a prospective employee’s employment status.
Commencing in June, employers in New York City with four or more employees will be prohibited from taking any employment action – including those related to hiring and compensation – based upon an applicant’s prior unemployment status. In addition, the bill bans employers from stating or suggesting in job advertisements that current employment is a prerequisite for employment. Simply put, the bill places a job applicant’s employment status on equal footing, at least for purposes of the city’s anti-discrimination law, with the applicant’s race, religion, sex, and other well-established protected characteristics.
Although other jurisdictions, including New Jersey, Oregon, and the District of Columbia, maintain similar laws, the New York City bill goes even further by providing applicants with a private right of action to sue for damages in court and to file a complaint with the New York City Commission on Human Rights. In addition to any in-court recovery, the Commission possesses the authority to impose civil penalties of up to $125,000 for violators, and $250,000 for those employers that are deemed to have committed a willful, wanton, or malicious violation.
So What Does This Mean for New York City Employers?
All employers in New York City should re-evaluate their hiring practices and procedures in the following ways:
- Remove all direct and indirect references in job advertisements to current employment as a prerequisite for employment.
- Train those employees responsible for hiring on the new legislation. Although questions concerning an applicant’s employment history may not be per se illegal, such queries must be appropriately phrased and should be pre-screened by counsel.
- Consider any means by which an applicant’s employment status can be withheld from interviewers and decision-makers, and document any such measures that are undertaken.