Controversial amendments to New York City’s Human Rights Act take effect June 11, allowing job applicants to sue for discrimination against a new protected class: the unemployed.
The City Council enacted the far-reaching law over Mayor Michael Bloomberg’s veto in March.
Under the new law, employers must show they have a job-related reason for asking applicants about periods of unemployment. Job advertisements must not contain any language suggesting that jobs are only available to the currently employed.
Employers are still free to require specific skills and certifications, but they must be evaluated without regard to any periods of unemployment. Violations can result in injunctive relief, compensatory and punitive damages, attorneys’ costs and fees and civil penalties ranging from $125,000 to $250,000 per violation.
“Unemployed” is defined as “not having a job, being available for work, and seeking employment.” Employers may not consider an applicant’s unemployed status when deciding “hiring, compensation or the terms, conditions or privileges of employment.”
Bloomberg vetoed the measure largely because of language permitting disparate-impact lawsuits, in which applicants can win by demonstrating that an employer’s nominally neutral policy had an adverse impact on the unemployed. The act permits plaintiffs to prevail if they can prove that an employer’s hiring practices or policies, as a whole, resulted in a disparate impact. They don’t have to show which individual practices did.
Employers may try to defend their policies, but plaintiffs can still prevail by showing that a policy was available that would have resulted in less disparate impact. The burden then shifts to the employer to show the alternative policy would not have been as effective as the existing one.
Note: If you are a New York City employer, have your attorney review your hiring policies to ensure they comply with the new requirements.