Unemployment Discrimination and COVID-19 in New York City

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.

Proving that an employer made an adverse decision because of a job applicant’s unemployment is a difficult task. Employers may be able to provide other possible reasons for their decision, and the applicant would normally have the burden of proving that those reasons are merely pretexts. The NYCHRL allows applicants to bring a claim based on “disparate impact,” meaning that rather than proving that an employer had discriminatory intent, an applicant must prove that “a policy or practice of an employer…results in a disparate impact to the detriment of” unemployed applicants. Id. at § 8-107(21)(e)(1). The employer then has the burden of demonstrating that the “policy or practice has as its basis a substantially job-related qualification.” Id. at § 8-107(21)(e)(2).

Unemployment Due to COVID-19

It is too early to say how COVID-19 will affect people’s return to the New York City job market. What we do know is that the ranks of the unemployed in the city have grown at an almost-unfathomable rate. From January to March 2020, the monthly unemployment rate in New York State averaged four percent. In April, the rate more than tripled, reaching 14.5 percent. The employment protections offered by the NYCHRL will soon be needed more than ever.

The skilled and knowledgeable New York City employment discrimination attorneys at Phillips & Associates advocate for workers’ rights in claims for discrimination and other unlawful employment practices. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation with a member of our team.

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