The New York City Commission on Human Rights (“the Commission”) published a legal enforcement guidance (“Guidance”) clarifying its standards with respect to discrimination based on actual or perceived immigration status and national origin. The Guidance applies to employers, housing providers, and providers of public accommodations.

As the Guidance explains, “[d]iscrimination based on immigration status often overlaps with discrimination based on national origin and/or religion.” Under the New York City Human Rights Law (“NYCHRL”), employers with four or more employees are prohibited from discriminating on any of these bases against job applicants, employees, interns and independent contractors.

Much of the focus of the new Guidance is on discriminatory conduct based on citizenship status and “work authorization” status. In this regard, the Guidance reiterates the following mandates:

  • Employers may not discriminate among work-authorized individuals, including citizens, permanent residents, refugees, asylees, and those granted lawful temporary status, unless required or explicitly permitted by law.
  • Job application and interview questions related to work authorization must be applied uniformly to all applicants, and not selectively, based on the actual or perceived immigration status or national origin of the applicant.
  • If an employer employs workers who are unauthorized to work, those workers may not be treated less favorably on the basis of their immigration status.
  • Employers may not engage in “document abuse” by demanding documents from a job applicant or worker beyond those required to establish work authorization under federal law, including green cards and birth certificates. Employers must accept any document from the “List of Acceptable Documents” established by federal law on a Form I-9.
  • Except in limited, specified circumstances, employers may not re-verify an employee’s work authorization.
  • An employer may not take any adverse action against an applicant or worker based on a No-Match Letter from the Social Security Administration.
  • Employers may refuse Immigration and Customs Enforcement (“ICE”) access to non-public facing areas of their workplace if the agents do not produce a warrant signed by a judge.
  • An employer may not threaten workers with ICE involvement to harass, intimidate, or retaliate against employees.
  • The guidance instructs against the use of such terms as “illegal alien” and “illegals,” and reiterates that the NYCHRL prohibits the use of such terms to demean or offend people in the workplace.

The Guidance provides examples of specific kinds of actions that violate the NYCHRL including the following:

  • Granting workers different break arrangements based on their immigration or work authorization status.
  • Threatening to contact ICE if a worker attends a necessary medical appointment.
  • Refusing to accept a Social Security card and demanding a birth certificate from a job applicant because the applicant has an accent.
  • Prohibiting hotel housekeepers from speaking Spanish while cleaning because it might make guests uncomfortable.
  • Using a No-Match letter as an excuse to terminate an otherwise qualified worker.
  • Providing Polish workers (or workers of any specific nationality) first priority in scheduling to the disadvantage of its U.S. citizen workers (or workers of another nationality).

The Guidance further instructs that once an employer hires a worker who is unauthorized to work or undocumented, that worker is covered by the NYCHRL and may file a claim of discrimination with the New York City Commission on Human Rights or a lawsuit.

Finally, employers should be aware that a new state law, effective August 15, 2019 and applicable to all New York employers as of February 8, 2020, prohibits employers from threatening, penalizing, or otherwise discriminating or retaliating against an immigrant employee, including threatening to report that person or a member of his or her family to U.S. immigration authorities.

The recent focus by both the state and the city on discrimination based on immigration status suggests that employers should anticipate increased scrutiny and enforcement concerning this issue.

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