New York City Passes Law Protecting Unemployed Job Applicants from Discrimination

New York City Council passed a law prohibiting New York City employers from basing hiring decisions, compensation or promotion on whether the individual had previously been unemployed. The law takes effect June 11, 2013.

A Few Details on This New Law

  • The law defines being "unemployed" as "not having a job, being available for work and seeking employment." Key is that the person must be "available" to work and "seeking" work (therefore, presumably students not seeking work would not be covered).
  • The law applies to employers who have at least four employees (a very low threshold).
  • A job advertisement cannot state that current employment is a qualification for the position or that the unemployed will not be considered.
  • The law contains some exceptions:
    • An employer can inquire as to the “circumstances surrounding” an applicant’s “separation from prior employment.”
    • An employer can also consider an applicant’s unemployment if there is a “substantially job-related reason for doing so”.  What constitutes a “job-related reason” seems very unclear.
    • Employers can set compensation and terms of employment based on an individuals’ experience.
    • Employers can give preference to their own employees.
  • Disputes go to the New York City Commission on Human Rights. This body has wide jurisdiction (including awarding back pay and significant fines). An individual may also sue in Court.

This new law is a good reminder to Ontario employers that the Ontario Human Rights Code prohibits discrimination in job applications and has specific provisions relating to the form of applications for employment and interview questions. While the New York City law does not apply in Ontario, it may be a catalyst for similar changes to Ontario’s Human Rights Code, which currently prohibits discrimination in employment (including applications for employment) on the following prohibited grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. It is important to note that this list has not remained static as, just recently, “gender identity” and “gender expression” were added, thus demonstrating the government’s willingness to broaden what constitutes a prohibited ground of discrimination. For now, and notably absent from that list, is any mention of job status, unemployment or social condition/status. Stay tuned.

age ancestry citizenship colour creed disability discrimination ethnic origin family status gender expression gender identity job advertisement job qualification marital status New York City Commission on Human Rights New York City Council Ontario employer Ontario Human Rights Code place of origin race record of offences sex sexual orientation unemployment

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