United States: New York City On The Verge Of Prohibiting Discrimination Based On An Individual's Unemployment Status

Last Updated: February 15 2013
Article by Michael S. Arnold

New York City employers beware: The New York City Council has once again acted to expand the nation's broadest anti-discrimination law – this time to prohibit discrimination against New York City's unemployed.  While several other jurisdictions (such as New Jersey, Oregon and Washington D.C.) have recently passed similar laws, the New York City measure goes one (major) step further: if enacted, unemployed individuals who believe they have been discriminated against on the basis of their employment status will have the right to sue in court and recover compensatory and punitive damages, as well as attorneys' fees. 

While Mayor Bloomberg has threatened to veto the law (which you may read here) calling it "one of the most misguided pieces of legislation" the Council has passed, an override may not be far behind as an overwhelming majority (44 of the Council's 50 members) voted for the measure and just 34 votes are needed for an override.  If the Mayor does not veto the bill by next Friday, February 22, 2013, the new measure will become law and will take effect 90 days thereafter.  We will certainly be monitoring developments, and will keep you informed.

In a nutshell, this new anti-discrimination measure prohibits employers, employment agencies and their agents generally, from:

  1. Basing an employment decision with regard to hiring, compensation or the terms, conditions or privileges of employment on an applicant's unemployment status; and
  2. Publishing, in print or any other medium, an advertisement for any job vacancy that states or indicates that (i) current employment is a requirement or qualification for the job; or (ii) they will not consider an individual for employment based on his or her unemployment. 

The law includes certain exceptions and examples of situations that would not be considered violations.  For example, employers, employment agencies, and their agents may lawfully:

  1. Consider an individual's unemployment where there is a "substantially job-related reason for doing so," and may consider the "circumstances surrounding an applicant's separation from prior employment."  In other words, an employer would be allowed to consider whether an applicant was unemployed because of misconduct or poor performance, rather than through no fault of his or her own.
  2. Base decisions on, or post advertisements identifying, "substantially job-related qualifications," including "a current and valid professional or occupational license; a certificate, registration, permit or other credential; a minimum level of education or training; or a minimum level of professional, occupational or field experience." 
  3. Limit the applicant pool to only those currently working for that employer; and
  4. Set compensation or terms and conditions of employment based on the person's actual amount of experience. 

The law defines "unemployment" as individuals "not having a job, being available for work, and seeking employment."  It does not appear, then, that the law covers those individuals who are currently working but who were previously unemployed or who have a history of unemployment.  Despite this limitation, the law currently protects a population of about 350,000 individuals who, on average, have been out of work for more than 10 months. 

As mentioned earlier, an individual may file a lawsuit in court, but they may also opt to lodge a complaint with the City Commission on Human Rights.  If just 1% (or roughly 3,500) of the current eligible population lodges a complaint with the already under-funded City Commission, its annual caseload would increase by more than 50%.  Courts, as the Bloomberg administration has argued, will also experience "significant feasibility and operational challenges" in processing this many new claims.  Of course, the impact of the new measure will be felt most by employers – already subject to strict liability under the human rights law – in that they will be forced to incur additional defense costs, especially those costs related to nuisance suits advanced by applicants rejected for otherwise valid reasons. 

Perhaps Mayor Bloomberg's Deputy Counselor, Bill Heinzen, put it best when he testified before the New York City Council in June 2012, when the measure was first considered:

[A]dding this category blurs the line between irrational discrimination, which the Human Rights Law is supposed to address, and more complicated employment decision-making processes that can legitimately rely on multiple factors.  Unlike other bases for discrimination prohibited by the Human Rights Law, such as race, religion, or sex – which should never be relevant to hiring and employment decisions – a person's unemployment status may, in certain situations, be relevant to employers when selecting qualified employees. 

Mayor Bloomberg put it even more succinctly: "I can't think of any rational employer who wouldn't want to know what you've been doing for a period of time."  And although the Mayor and Deputy Counselor Heinzen are probably right, the New York City Council does not appear to see it the same way.

Therefore, if this law is ultimately enacted, employers should take steps to reduce their exposure, including by:

  • Training staff members involved in the recruiting and hiring processes about this newly protected category.  An October 2011 report by SmartRecruiters found that of those surveyed, "82% of recruiters, hiring managers, and human resource professionals, report the existence of discrimination against the unemployed" and that "55% of recruiters and HR managers surveyed have "personally experienced resistance when presenting qualified yet unemployed candidates to clients/colleagues."  Thus, employers should train relevant staff members that an applicant's unemployment status – like other protected categories – has no place in the decisionmaking process.
  • Training staff members tasked with interviewing applicants.  Employers should identify prohibited questions and instruct interviewers how to frame certain questions properly.  For example, rather than asking applicants how long they have been out of work, or the reason for a prolonged absence from the workplace, the interviewer should focus on why their previous employment ended, or whether they possess the requisite level of experience or training to properly perform the job duties associated with the vacancy.  Interviewers should be taught to keep the conversation focused on job-related skills and qualifications, even if an applicant tries to explain his or her difficulties in finding a job.  Employers should also train staff members how to properly complete applicant evaluations and document hiring decisions in order to comply with the law's requirements. 
  • Consulting with recruiters or other employment agencies acting on their behalf.  It is no secret that some recruiting firms favor currently-employed applicants over unemployed applicants when helping a company fill a vacancy.  Employers should inform these firms and any other employment agencies they work with that the applicant pool should not be limited to currently-employed applicants. 
  • Reviewing employment advertisements and applications.  Clearly, employers should no longer post advertisements stating that only the currently-employed need apply.  But employers should also analyze whether any other part of their existing applicant intake processes would violate the new law.  This may be as simple, for example, as revising poorly-worded job postings that use phrases such as "recent experience necessary" rather than stating the level of experience necessary to perform the job.  Or it may require the employer to ensure that its electronic screening software does not filter out applicants who fail to enter current employment information on electronic application forms. 

We will continue to keep you posted on any developments related to New York City's new unemployment discrimination law, as well any other proposed laws currently being advanced by the City Council (and/or State Legislature), such as the one that seeks to prohibit discrimination based on an individual's credit history.  In the meantime, we encourage employers to seek the advice of employment counsel to help comply with this proposed new law, and, of course, Mintz's New York Labor, Employment and Benefits practice attorneys are standing by as well.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Michael S. Arnold
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions