Employers Beware: New York City Bans Job Discriminaton Against The Unemployed

On March 13, 2013, the New York City Council (the "Council") overrode Mayor Michael Bloomberg's veto and passed a new statute named "Prohibiting discrimination based on an individual's unemployment" (the "Statute"). The Statute bans discrimination against the unemployed in connection with employment decisions, with certain exceptions discussed below. Although the Statute is not the first of its kind in the United States, it is the first to allow rejected applicants to bring a private suit asserting discrimination on the basis f unemployment status.

Employer Obligations under the Statute

The Statute prohibits an employer from basing an employment decision (such as hiring or compensation) "on an applicant's unemployment." In addition, the Statute prohibits an employer from advertising that current employment is a qualification for a job, or that an applicant will not be considered for hire because of his/her unemployed status. The Statute applies to all employers who have four or more persons under their employ. Natural persons (as opposed to businesses) who are independent contractors and not themselves employers, and who perform work for the employer in furtherance of the employer's business enterprise count towards the our employee requirement. (We can help you determine which of .your independent contractors and consultants might apply)

Fortunately for employers, the Statute contains several exceptions. For example, an employer may consider an applicant's unemployed status in an employment decision if there is a "substantially jobrelated reason" for doing so. The Statute neither defines this term nor offers examples of it. An employer may also question an applicant about the circumstances surrounding his or her separation from a previous employer, and may also consider "any substantially job related qualifications" as reasons for not hiring the...