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.