New York Courts Take on Unemployment Discrimination Claims

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.

The plaintiff alleged that she was asked about her unemployment during a job interview and that the interviewers then “accelerated the interview to rocket speed.” Id. She did not get the job. She asserted multiple causes of action in her lawsuit. The court considered the unemployment discrimination claim separately. It found that it lacked jurisdiction to hear a claim under a city statute, noting “the uniqueness of the NYCHRL’s provisions” and “the paucity of relevant case law.” Id. at 11.

Another Manhattan federal judge took a more in-depth look at an unemployment discrimination claim under the NYCHRL in Stratton v. Ernst & Young, No. 1:15-cv-01047, mem. op. (S.D.N.Y., Oct. 27, 2016). The plaintiff was referred to the defendant through a “Referral Program” that encouraged current employees to recommend others for employment. He submitted a resume and application in February 2014. His application indicated that his last job had ended in July 2013. He asserted claims for race and unemployment discrimination.

The court noted that NYCHRL claims “are considered under a more liberal framework” than claims brought under federal or state laws. Stratton, mem. op. at 13, citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). It held, however, that a claim must still be dismissed “when a plaintiff offers no evidence to rebut a defendant’s non-discriminatory explanation.” Stratton at 13-14.

The wrongful termination lawyers at Phillips & Associates advocate for the rights of New York City employees and job applicants, helping them assert claims for unemployment discrimination and other unlawful workplace practices. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case with a member of our knowledgeable and skilled team.

More Blog Posts:

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

New York AG’s $3.9M Settlement with Car Wash Owners Shines Light on Industry’s Underpayment of Workers, New York Employment Attorney Blog, August 10, 2015


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