Employment lawyers and executive compensation attorneys have long been aware that in terms of protecting employees from discrimination, the New York City Human Rights Law has a far broader reach than any single Federal statute or, indeed, any combination of Federal statutes. One prominent professor of law at one of New York’s most prestigious law school tells his students that if they ever bring an action under the Federal anti-discrimination laws as opposed to a state or local law like the NYC Human Rights Law, he will personally come to his or her home in the dark of night and take back the offender’s law degree!
The NYC Human Rights statute prohibits employment discrimination based on actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, citizenship status, caregiver status, previous arrest record, and credit history. Some of these categories — such as partnership status and sexual orientation — are nowhere to be found in the Federal law.
And two of the newest additions to this New York City law have added the requirement that a prospective employer in New York City is prohibited from asking a candidate for employment about his or her criminal history until such time as the employer has tendered a “conditional” offer of employment (i.e., “we are offering you a job subject to a criminal background check, as well as the customary drug test and/or immigration status check”) and, with certain limited exceptions, from asking about an applicant’s credit history in any form and at any time.
These additions to the New York City Human Rights Law were enacted in 2015. The express purpose of the criminal history amendment — the “Fair Chance” Act — was to lower the barriers to employment (or re-employment) for that portion of the population whose past criminal history might be unduly held against them. New York City considers it an important public goal to re-integrate such folks into the workplace, and has attempted to balance the right of employers to know about a prospective employee’s prior criminal convictions with society’s desire to ease people who have had these problems back into the workforce.
The thinking behind the law must be that once a bona fide job offer has been made, even if conditional, the hiring momentum will be such that if an employer finds and is troubled by the candidate’s history, the stage is set for the candidate to offer a satisfactory explanation of the past (suppose an arrest did not lead to a conviction). The prospective employer who presumably is already invested in the candidate, should be more motivated to consider the specific facts and circumstances of each case, particularly since the law now contains strictures about how the prospective employer has to notify the candidate of the criminal history problem and take certain other steps.
The background of the “Stop Credit Discrimination in Employment Act” is that rejecting a candidate on account of his or her credit history has often been a convenient screen for other types of discrimination, particularly (although not solely) against people of color, so the ban on asking for credit history except in the case of certain carefully-limited occupations, is also designed to ferret out and, hopefully, reduce these other, historical forms of discrimination.
There are serious monetary penalties for violating these laws.
Under the New York City law, the employer is also prohibited from considering — and discriminating — on the basis of whether the candidate is a caregiver, or whether the candidate was a victim of domestic violence, a victim of stalking or a victim of a sexual offense.
Executives can have these problems as well as rank-and-file workers. If you are an executive who feels you have been discriminated against when applying for a job for which you were highly qualified, it would be beneficial to speak to an experienced executive employment compensation attorney who is not only knowledgeable about the provisions of the New York City Human Rights Law, but about C-suite employment law overall.
