New York Employment Attorney Blog
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.
If a lawsuit involves claims that arise under both federal and state laws, and the court has federal question jurisdiction over the federal-law claims, it can exercise “supplemental jurisdiction” over the state-law claims. Id. at § 1367. If all of the federal-law claims in this type of case fail, however, the federal court loses jurisdiction over the remaining state-law claims. This has occurred in at least one recent unemployment discrimination lawsuit under the NYCHRL. Szewczyk v. City of New York, No. 1:15-cv-02468, order (S.D.N.Y., Sep. 9, 2016).
Once a plaintiff has established jurisdiction, they must plead sufficient facts to indicate that the defendant employer based an adverse decision on their unemployment. The NYCHRL prohibits both specific acts of discrimination and general representations to the public that exclude unemployed individuals from job opportunities. Late last year, a federal court held that a plaintiff needed to plead specific facts about her own application in order to sustain her case. The plaintiff alleged that “her applications were rejected” by the defendant, which then “kept the jobs open for employed applicants.” Jablonski v. Special Counsel, Inc., No. 1:16-cv-05243, order (S.D.N.Y., Sep. 28, 2017). She based this allegation primarily on information found on the defendant’s website, which the court found too “speculative.” Id.
The unemployment discrimination attorneys at Phillips & Associates advocate on behalf of New York City job seekers, helping them assert their rights in claims of unemployment discrimination. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
New York Courts Take on Unemployment Discrimination Claims, New York Employment Attorney Blog, July 24, 2017
How Current Federal Law May Affect Discrimination Based on Unemployment, New York Employment Attorney Blog, January 4, 2016
New York City Leads the Nation in Taking on Unemployment Discrimination, New York Employment Attorney Blog, October 21, 2015