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Kates Nussman Rapone Ellis Farhi, LLP

NEW YORK CITY NOW BARS DISCRIMINATION AGAINST UNEMPLOYED

The New York City Human Rights Law (NYCHRL) bars discrimination based on factors including race, age, national origin, gender, sexual orientation, and disability. As of June 11, 2013, an amendment to the Law will prohibit discrimination against unemployed individuals. It adds employment status as an additional protected category. Although other jurisdictions (including New Jersey) bar discrimination against the unemployed, the New York City law seems to be the first to allow a private cause of action. Individuals can file a complaint with the New York City Division on Human Rights or file a civil lawsuit to recover compensatory and punitive damages, injunctive relief, and attorneys fees and costs. 

The new law says that unless otherwise permitted by city, state or federal law, covered employers may not base an employment decision on the fact that the applicant is unemployed, a term defined as someone who does not have a job, is available for work, and is seeking employment. It applies to most employers and employment agencies with 4 or more employees and/or independent contractors. Exceptions include certain public employees and/or agencies, as well as individuals employed under a union contract.

But it does not prevent employers from giving preferential treatment to their own employees. So, an employer may say that only applicants who are current employees will be considered for a particular position, or that current employees will be given priority.

A business can still ask about the circumstances of an applicant's separation from his or her prior employment; require that he or she have a certain amount of experience; and/or make compensation and benefit decisions based on that experience.

Finally, the new law continues to permit employers to require a current and valid professional or occupational license; a certificate, registration, permit, or other credential; a minimum level of education or training; or a minimum level of professional, occupational, or field experience. But when an employer does impose those qualifications, it may be required to show that each is substantially job-related.

Going forward, those looking to hire in New York City should not use terms like "currently employed" or "must have a very stable work history." In fact, they should revise their policies to affirmatively state that they do not discriminate against individuals who are unemployed. Finally, employers should be prepared to explain why each qualification for a position is substantially job-related.

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