An expansive new law provides that, effective June 11, 2013, employers in New York City may no longer exclude unemployed job seekers from consideration for possible employment based on their unemployment. The amendment to the City’s Human Rights Law treats “unemployment” as a protected characteristic and permits applicants to file a complaint with the New York City Commission on Human Rights or in court if an applicant believes he or she was discriminated against based on unemployment. An applicant may also establish an unlawful discriminatory practice by an employer by showing that a policy or practice of the employer results in a disparate impact on the unemployed.
The law allows employers to consider an applicant’s unemployment in limited circumstances and provides employers with certain defenses and other rights. For example, an employer may evaluate circumstances of an applicant’s separation from prior employment and consider “substantially job-related qualifications” (such as requisite certifications and credentials, education, and experience). Additionally, employers are permitted to give priority or limit the hiring process to internal candidates. The law applies to all employers of four or more employees with limited exceptions for those subject to civil service laws or a collective bargaining agreement.
A narrower law protecting unemployed applicants went into effect in the District of Columbia in May 2012. Oregon and New Jersey have laws in place prohibiting advertisements for vacancies from including employment as a job qualification. None of these other laws establish a private cause of action permitting applicants to sue prospective employers directly.