On Sept. 25, the New York City Commission on Human Rights released a detailed enforcement guidance document that provides examples of employer behavior that would constitute discrimination or harassment of an employee or job applicant based on their actual or perceived immigration status or national origin. The guidance gives employers and employees a deeper understanding of what conduct would be illegal under the New York City Human Rights Law, or NYCHRL, which generally applies to any employer operating in New York City with at least four employees.
While New York City law already protects employees against discrimination based on actual or perceived “alienage and citizenship status” and national origin, this new guidance explains how this kind of discrimination or harassment might occur (the commission explains that because the term “alienage” can be demeaning, it instead uses “immigration status.”)
In a press release, the chair of the commission said that protection of “our treasured immigrant communities” is important at a time of “increasingly hostile national rhetoric.”
Potentially discriminatory scenarios
The commission’s examples of potentially unlawful discrimination, harassment or retaliation by an employer include:
- Threatening to report an applicant or employee to the federal immigration agency Immigration and Customs Enforcement, known as ICE, which could be intimidating or create fear of deportation
- Threatening to call ICE or law enforcement to pressure employees to work in “unsafe, unequal, or otherwise unlawful conditions” such as working without required breaks, or to pressure workers not to complain about negative treatment like having wages withheld or being denied medical leave or insurance coverage
- Providing advantages to one group of employees based on their national origin or citizenship status
- Taking adverse employment action based on “stereotypes or assumptions” stemming from immigration status or national origin
- Using the label “illegal alien” or similar terms with intention to “demean, humiliate or harass a person”
- Discriminating against or harassing an applicant or worker because of their limited English proficiency or their accent, or for speaking another language
- Paying an employee less than his/her coworkers based on the employee’s national origin or immigration status
- Demanding documents related to immigration status beyond those required under federal law, a practice called “document abuse”
- Reverifying an employee’s federal work authorization in circumstances beyond those allowed under federal law
- Taking negative action against an employee for generating a No-Match Letter from the Social Security Administration, which could be the result of a name change or clerical error instead of an immigration problem
- Taking adverse employment action based on the immigration status or national origin of a relative or other person with whom the worker has a relationship, a practice called “associational discrimination”
It is important for covered employers in New York City to speak with legal counsel about creating hiring practices, training and workplace standards that comply with this guidance and the NYCHRL, as well as internal procedures for correcting behavior by managers or co-workers who discriminate or harass others based on immigration status or national origin.
Employees who believe they have suffered discriminatory or harassing behavior should consult an attorney as soon as possible to understand what legal options are available to them under the Human Rights Law.