United States: New York City's Commission On Human Rights Issues New Guidance On Immigration Status And National Origin Discrimination

Last Updated: October 15 2019
Article by Cindy Schmitt Minniti, Mark S. Goldstein and Leora Grushka

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.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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.

Authors
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
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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.

Disclaimer

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.

General

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