Under a 2013 amendment to the New York City Human Rights Law, the “unemployed” are now a protected class for purposes of the discrimination law.
Under the amended law, it is unlawful for an employer, employment agency, or agent thereof to (i) base an employment decision concerning hiring, compensation, or terms or conditions of employment on an applicant’s unemployment status and (ii) state in a job posting that current employment is a requirement for the position or that unemployed applicants will not be considered. New Jersey has a similar law, passed in 2011, that prohibits employers from stating in job postings that only currently employed individuals will be hired.
The law, however, does permit an employer to take an applicant’s unemployment into account under certain conditions, including when there is a “substantially job-related reason” for doing so or when the unemployment status may reflect on an employee’s qualifications for a job. Employers are also permitted to inquire “into the circumstances surrounding an applicant’s separation from prior employment” and to give hiring preference to their own current employees.
With the amendment, employers can expect to face an increase in discrimination claims challenging the hiring process. In light of the increased protections afforded to unemployment status, employers should review their hiring policies, guidelines, and postings to ensure compliance with the law. Employers should also ensure that human resources and other individuals involved in the hiring process are aware of what they can and cannot consider with respect to unemployed applicants.