For decades, the New York City Human Rights Law (NYCHRL) has provided protections against discrimination, harassment, and retaliation on the basis of an individual’s actual or perceived immigration status or national origin. However, last week, New York City’s Commission on Human Rights (NYCCHR) issued new guidance (the Guidance) that greatly expands the basis on which an employer can be penalized under the law. The Guidance provides examples to illustrate prohibited harassment and retaliation against individuals, based on their immigration status or national origin. Below is a list of the hiring practices and employee policies which can often lead employers to inadvertently violate the NYCHRL.
Hiring practices. In general, employers that discriminate against work-authorized individuals (including citizens, permanent residents, refugees, asylees, and those granted lawful temporary status) in their hiring practices, will be found to have violated the NYCHRL. The narrow exception to this rule is that federal law allows employers to hire a U.S. citizen over a non-U.S. citizen when two applicants are equally qualified.
Document abuse. The Guidance states that an employer may not demand that applicants or employees provide documents beyond those required to establish work authorization under federal law. Therefore, employers must not demand proof or additional documents (1) to establish identity and/or work authorization; (2) to confirm work authorization before accepting a job offer; or (3) to reverify that an employee is authorized to work. Additionally, employers must not refuse to hire individuals whose documents will expire in the future. Moreover, the Guidance limits an employer’s right to reverify an employee’s work authorization, to the purposes permitted under federal law. Circumstances that do not warrant reverification include when an employee returns from a leave of absence, or when an individual is promoted, transferred, or on strike.
Immigration worksite enforcement. Immigration worksite enforcement refers to raids by Immigration and Customs Enforcement (ICE) and I-9 audits. Unless explicitly prohibited by law, the Guidance encourages employers to give employees advance notice of a raid or audit, to allow them the opportunity to update any necessary documents and make other preparations.
Harassment and retaliation. The NYCCHR explains that the following are forms of discrimination:
- Use of the terms “illegal alien” and “illegals,” with the intent to demean, humiliate, or offend a person in the workplace
- An employer’s threats to call federal immigration authorities, when motivated by animus on the basis of an individual’s actual or perceived immigration status or national origin
- An employer’s threats to call immigration authorities or the police, to force employees to work in unsafe or unlawful conditions
The Guidance provides the following examples of unlawful discrimination: (1) an employer’s demand that a job applicant who speaks English with an accent present a birth certificate in addition to a Social Security card, or (2) a company that provides its Polish workers with priority in scheduling and time off, to the disadvantage of U.S. citizens.
An employer’s use of stereotypes or assumptions in its hiring and employment practices also constitutes discrimination under the NYCHRL. For instance, as outlined in the Guidance, “[a]n employer [that] interviews a highly qualified applicant for a new position, [and u]pon hearing the applicant’s accent, the employer decides not to hire them, assuming that their accent indicates that the applicant is not very smart,” has violated the NYCHRL. In addition, employers must be wary of applying facially neutral polices that disproportionately impact one group more than others. For example, the Guidance clarifies that an employer may not have a policy that requires applicants or employees to provide a passport in order to gain/continue employment because this would disproportionately affect non-U.S. citizens.
This law also protects employees’ family members, or those with whom the applicant or employee has a relationship or association. For instance, an employer may not refuse to pay health benefits for an employee’s spouse who is not a U.S. citizen if the health benefits are typically available to other employees’ spouses.
Finally, employers may not retaliate against, threaten, or intimidate an employee who complains of discrimination on the basis of their immigration status or national origin.
Employers should review their hiring practices and workplace policies for compliance with this new Guidance. Violations of the NYCHRL include the risk of:
- Civil penalties of up to $250,000
- Requiring the complainant to be hired
- Requiring reinstatement of the complainant following termination
- Requiring a promotion of the complainant
- Back pay
- Front pay
- Compensatory damages
- Punitive damages
- Attorney’s fees and costs
If you have any questions or concerns about the application of the NYCHRL to your business, or the validity of a potential or pending NYCHRL claim against you or your company on the basis of an individual’s immigration status or national origin, our experienced Labor and Employment Group is ready to speak with you. For more information regarding this Guidance, please contact your Reed Smith attorney.