Old Adage “To Get a Job, You Must Already Have a Job” Will Soon be Unlawful under New York City Human Rights Law

By Andrew M. Moskowitz, Esq.
amoskowitz@pashmanstein.com

Job Description:

Account Manager

Highly regarded service company seeks an Account Manager to call on Third Party Administrators in an assigned geographic region. You will call on new TPA’s as well as handle an assigned list. Candidates must have 3+ years of inside sales experience, must be currently employed and have a very stable work history.

Listing from CareerBuilder.com (emphasis added). 

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

The amendment to the NYCHRL provides 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.  In addition, the law prohibits facially neutral policies—such as, for example, requiring a minimum level of professional experience—which disparately impact the unemployed, unless an employer can demonstrate either that these requirements are substantially job-related or that the policy did not have a disparate impact upon the unemployed.

The amendment to the NYCHRL, which passed over Mayor Bloomberg’s veto, applies to most employers and employment agencies with four or more employees and/or independent contractors.  Exceptions include certain public employees and/or agencies (including the Mayor’s office) as well as individuals employed pursuant to a collective bargaining agreement.

The new law does not prohibit employers from granting preferential treatment to their own employees.  Thus, an employer may state that only applicants who are current employees will be considered for a particular position, or that current employees will be given priority.

In certain other instances, the new law permits employers to consider applicants’ employment status. An employer may still inquire into the circumstances surrounding an applicant’s separation from his or her prior employment; request that an applicant have a certain amount of experience; and/or make compensation and benefit decisions based on an applicant’s experience. In addition, where it can demonstrate “a substantially job-related reason for doing so,” an employer may consider an applicant’s employment status.

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.  However, where an employer does impose such qualifications, it may be required to demonstrate that each prerequisite is substantially job-related.  Where there is substantial evidence that an alternative policy with less disparate impact is available, the employer then bears the burden of proving that the alternative would not serve it as well.  If the employer cannot meet this burden, it may be deemed to have violated the law.

Going forward, New York City employers would be wise to refrain from employing some of the terms in the CareerBuilder.com listing such as requiring applicants to be “currently employed” or to “have a very stable work history.”  To the contrary, employers 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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