NYC Council Passes Law Against Unemployed Discrimination

By Paul Mollica

New York City is poised to protect the unemployed from discrimination. Recently, the New York City Council passed a law that would prohibit employers from discriminating against applicants because they are currently unemployed.

“The practice [of refusing to hire job seekers because they are unemployed] deepens the hardship of those struggling to return to the workforce, and exacerbates the crisis levels of long-term unemployment that New Yorkers–and Americans across the country–continue to face,” said Christine L. Owens, Executive Director of the National Employment Law Project, in a press release.

The law would define unemployment as “not having a job, being available for work, and seeking employment,” and would prohibit employers from discriminating in hiring, compensation or other terms and conditions of employment based on an applicant’s unemployment. The law would also prohibit job postings and advertisements that make current employment a job requirement.

The measure instructs the New York City Commission on Human Rights to educate employers, employment agencies and job seekers on the requirements of the law.

The law gives employers the flexibility to consider a candidate’s unemployment as a factor when there is a “substantially job-related” reason to do so. It would also preserve employers’ right to inquire into the basis for the applicant’s separation from their previous employers.

(Click here for an interview with Naomi Sunshine on this issue with the Employment Law Channel.)

According to news reports, Mayor Bloomberg has said he would veto the bill, but it is likely on its way to becoming law nonetheless. The measure was passed by an overwhelming majority of the City Council (44 votes to 4) and they will likely override the Mayor’s veto.

New York City follows Oregon and New Jersey, which recently prohibited such “unemployed need not apply” job advertisements, and Washington, D.C., which prohibited discrimination in employment based on unemployment status, allowing aggrieved parties to bring complaints to an administrative agency that has the power to levy fines against employers who violate the law.

But New York City’s law would go further – it is the first of its kind that would give a person the opportunity to show in court that she had been passed over for employment because of her unemployment status.

The law gives workers a fairer shake by requiring employers to consider candidates based on their experience and qualification for the job, and not on whether there has been a break in the candidate’s employment.

The problem the bill seeks to address is real. A groundbreaking academic paper involving researchers at UCLA and the State University of New York at Stony Brook entitled, “The Psychological Stigma of Unemployment: When Joblessness Leads to Being Jobless,” found an “instantaneous” unemployment stigma that leads to discrimination. One of its widely publicized studies had 47 HR professionals reviewing resumes for a fake marketing manager position. The only distinguishing factor among half of the resumes was that the candidates were shown to be unemployed for a month. The results: the employed candidates were given much higher ratings for “competence” and “hireability.”

Furthermore, in a 2011 study, the National Employment Law Project found that employers and employment agencies routinely include a requirement that applicants be currently employed in their job postings.

And New Yorkers, in particular, are struggling to find work. The unemployment rate for the year 2012 for New York City was at 9.4 percent, which is higher than the national (7.8) and state (8.8) rates. Of those, more than half of all the unemployed in New York have been job-hunting for over six months; and nearly 29 percent or one in every three unemployed New Yorkers have been job-hunting for over one year. (*Source: New York City Council).

But there may be challenges in proving unemployment discrimination, as employers rarely tell candidates why they decide not to hire them. This may make it challenging to prove that it was a candidate’s unemployment status, and not some other factor, that the employer used to determine not to hire the candidate.

So, given the pervasiveness of bias against the unemployed, how can unemployed individuals put their best foot forward when applying for and interviewing for jobs? First, always have a ready explanation for gaps in your resume. Also, if you are unemployed, stay current in your field by volunteering, serving on a committee or non-profit board, attending conferences, and reading about new developments. If you can, take the opportunity to brush up on your skills and acquire new ones. And, if an employer refuses to hire you because you are unemployed, you may soon have recourse.

Please visit the professional bio of Naomi Sunshine at the Outten & Golden LLP website.