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  • Unemployment: New Basis for Discrimination under Proposed Law

    The New York City Council has recently taken steps to expand anti-discrimination laws by prohibiting employers from discriminating against job applicants on the basis of their employment status. If enacted, Bill 814-A would provide recourse for jobless individuals who believe they have suffered an adverse decision as a result of their unemployment. Although other jurisdictions, including New Jersey and Washington D.C., have enacted similar legislation, the City’s proposed law differs in an important respect as it provides a private right of action for those alleging discrimination based on their employment status. Mayor Bloomberg disapproves of the proposed bill and has pledged to veto the law. However, the City Council appears to have a sufficient number of members backing the measure, allowing them to override any potential veto.

    Employers subject to the proposed law include entities employing four or more individuals as well as employment agencies. Prohibited conduct includes publishing an advertisement for a job position specifying that current employment is a prerequisite for the opportunity or to indicate in some other manner that a potential applicant will not be considered as a result their unemployment. “Unemployed” or “unemployment” is defined as “not having a job, being available for work, and seeking employment.” While the proposed law is particularly applicable to hiring decisions, prohibited conduct also extends to promotions, pay, and other employment related decisions.

    Despite the sweeping nature of the law, it does contain certain exceptions, including the ability to consider an individual’s unemployment status when “there is a substantially job-related reason for doing so” or when it is necessary to inquire “into the circumstances surrounding an applicant’s separation from prior employment.” Additionally, the employer is permitted to consider “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.” An employer is also able to limit the applicant pool to only those currently employed by the employer and may determine compensation based on the individual’s actual level of experience.

    New claims under the proposed law have the potential of flooding already overburdened courts as the law will subject employers to even more potential liability concerning their hiring decisions. Consequently, human resource personnel must be immediately trained as to the application and nuances of the law should it be enacted.

    If you or your company have any questions or concerns about these topics and would like further information, please email James G. Ryan at jryan@cullenanddykman.com.

    A special thanks to Cynthia Thomas, a law clerk, and Sean Gajewski, an associate at Cullen and Dykman LLP, for helping with this post.