Articles Posted in Unemployment Discrimination

New York City employment discrimination law bars employers from making adverse decisions based solely on a job applicant’s current unemployment in most situations. Bias against people with gaps in their employment history, especially recent gaps, is a significant problem all over the country. The City Council passed this law in 2013, in part to give greater opportunities to people who may have had difficulty finding work. This could become substantially more important in the months and years to come. The coronavirus pandemic will almost certainly subside at some point. People who were unable to work during this time, perhaps because their employer laid them off, they could not find work due to quarantine or stay-at-home orders, or they had to recover from COVID-19, could have difficulty finding a new job without help from New York City law.

Unemployment Discrimination in New York City

The New York City Human Rights Law (NYCHRL) defines “unemployed” as “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102. The law generally prohibits employers from:
– Misinforming someone about a job’s availability because of that person’s unemployment;
– Advertising that current employment is a requirement for a job opening;
– Advertising that applicants who are not currently employed will not be considered; or
– Basing decisions related to “hiring, compensation or the terms, conditions or privileges of employment” on a person’s unemployed status. Id. at § 8-107(21)(a).

Employers may consider current unemployment if they have “a substantially job-related reason for doing so.” Id. at § 8-107(21)(b)(1)(a). They may also ask about how an applicant’s prior employment ended.

Continue reading

Looking for a job is rarely an easy or enjoyable process, but it can grow more difficult the longer a person is without work. When a job applicant’s resume indicates that they are out of work, some employers are inclined to reject them on that basis. New York City and other jurisdictions have enacted laws to limit or prohibit this practice. The New York City Human Rights Law (NYCHRL) has included provisions addressing this issue since 2013, including the right to file a private cause of action. Few courts have directly addressed claims under this statute so far, and most recent court decisions deal with jurisdictional questions, without getting to the alleged discrimination itself. Since the New York City employment statute dealing with unemployment discrimination is only effective at the city level, state court has the clearest jurisdiction. Filing a New York unemployment discrimination claim in federal court is not impossible, but it can be more difficult.

The NYCHRL defines “unemployed” as “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102(27). Employers may not discriminate against job applicants because of unemployment, nor may they advertise or otherwise state publicly that a position is only open to someone who is currently employed. Id. at § 8-107(21)(a). This law does not prohibit employers from “inquiring into the circumstances” regarding why an applicant lost an earlier job. Id. at § 8-107(b)(1). The prohibition on discrimination does not apply if an employer has “a substantially job-related reason for” treating an unemployed applicant differently. Id.

A plaintiff filing suit in federal court must establish that the federal court system has “subject matter jurisdiction” over their claims. The two main ways that federal courts can exercise subject jurisdiction are in cases that involve claims arising under federal law, known as “federal question” jurisdiction; and “diversity” cases in which the plaintiff and the defendant are from different states, and the amount-in-controversy is at least $75,000. 28 U.S.C. §§ 1331, 1332.

A substantial number of people in the U.S. have been out of work for months or even years, despite ongoing efforts to find work. Those people may find themselves in a paradoxical situation, in which lengthy unemployment makes it even harder to find a job. Some jurisdictions have enacted laws to protect people from discrimination on the basis of unemployment. New York City’s unemployment discrimination law took effect in 2013. At least two federal judges in Manhattan have considered claims under the New York City law in the past year. One judge focused primarily on jurisdictional questions, while the other undertook some analysis of the claim.

The New York City Human Rights Law (NYCHRL) defines “unemployment” as the state of “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102(27). Employers may not discriminate based on an applicant’s unemployment. Id. at § 8-107(21)(a)(1). An employer may not, for example, refuse to consider applicants who are currently unemployed, nor may they make disparate salary offers to unemployed job candidates. Employers are also prohibited from advertising that positions are only open to people who are currently employed. Id. at § 8-107(21)(a)(2).

A 2015 lawsuit in a Manhattan federal court claimed unemployment discrimination under the NYCHRL, which the court considered in an order on the defendant’s motion to dismiss. Szewczyk v. City of New York, et al., No. 1:15-cv-02468, order (S.D.N.Y., Sep. 9, 2016). The plaintiff had been unemployed for about four years when she applied for an Assistant Civil Engineer position with the defendant. She had worked in engineering jobs before, but the defendant’s job listing allegedly stated that “only candidates who are permanent in the title of Assistant Civil Engineer should apply.” Id. at 2.

Although we keep hearing that the economy is improving, many people in New York City and around the country continue to be without work. In a cruel twist, it can be more difficult for a person to find a job the longer they remain unemployed. New York City amended its anti-discrimination law in 2013 to prohibit employers from discriminating in hiring based on a person’s employment status. Other jurisdictions have enacted laws addressing bias against unemployed people, but so far few are as far-reaching as New York City’s law. Federal law does not expressly protect the unemployed, but the Equal Employment Opportunity Commission (EEOC) has considered the issue, and it offers guidance on how federal law may assist some people who believe their lack of employment led to the loss of a job opportunity.

According to the Bureau of Labor Statistics, about 7.9 million people were unemployed in the U.S. in December 2015, a rate of five percent. This rate had not changed in three months, but it was down 0.6 percent from one year earlier. About 2.1 million people, or 26.3 percent, had been out of work for at least 27 weeks. This is less than half the number of long-term unemployed reported by the Washington Post—4.7 million—in April 2013, but it is still a considerable number of people who have been seeking a job for six months or longer. In an often subtle form of discrimination, many employers simply will not consider an applicant who has been out of work for a long time.

Federal law prohibits employment discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Discrimination based on age, disability, and other factors is unlawful in certain circumstances under other federal statutes. New York state law includes protections for these categories, as well as others like sexual orientation and marital status. N.Y. Exec. L. § 296(a). None of these statutes specifically mentions unemployment.

Continue reading

The United States is, in many ways, still recovering from the economic crisis that began in 2008, with millions of people still unemployed or underemployed. Unfortunately, finding a job seems to become harder the longer a person is without a job. Many employers seem not to want to hire people who have been out of work for long periods of time. Unemployment therefore becomes a vicious cycle, from which many people cannot escape. Several states have enacted laws against job advertisements that include current employment as a requirement. New York City has gone a step further. It amended the New York City Human Rights Law (NYCHRL) in 2013 to prohibit employers from discriminating based on an applicant’s employment status.

According to the Washington Post, in April 2013 about 4.7 million people had been out of work for at least six months. Research indicated that a substantial number of employers would not consider resumes submitted by people with six months or more of unemployment, regardless of their experience or other qualifications. The White House has called on businesses to stop discriminating based on a lack of employment, and it has sought commitments from companies to adopt new hiring practices. Some state and local governments have turned to legislation to address the problem.

New Jersey was the first state to pass a law against unemployment discrimination in 2011, although its law is limited in scope. Advertisements for job vacancies may not state that current employment is required for the job, or that an employer will only consider applications from people who are currently employed. N.J. Rev. Stat. § 34:8B-1. The law only allows civil penalties for violations and expressly states that it does not authorize private causes of action by job applicants. Id. at § 34:8B-2. The law survived a court challenge claiming that it violates the First Amendment’s free speech protections. N.J. Dept. of Labor & Workforce Dev. v. Crest Ultrasonics, 82 A.2d 258 (N.J. App. 2014).

Continue reading