- New York City Employers Beware: Job Applicants Could Be Discrimination "Testers
- May 14, 2015 | Authors: Caroline J. Berdzik; Michael S. Katzen
- Law Firm: Goldberg Segalla LLP - New York Office
- New York City Mayor Bill De Blasio recently signed legislation establishing a year-long employment discrimination testing program in New York City to begin on or before October 1, 2015. The new law requires the NYC Commission on Human Rights to utilize a process called “matched-pair testing,” in which it sends out pairs of “testers” to apply for, inquire about, or express interest in the same job with local employers. The testers will be assigned similar credentials, but will differ in one of the various “protected characteristics” covered by NYC Human Rights Law: e.g., race, color, creed, age, national origin, alienage or citizenship status, gender/gender identity, sexual orientation, disability, marital status, partnership status, criminal history, unemployment status, and status as a victim of domestic violence, stalking, and sex offenses.
While the new law mandates the Commission conduct at least five investigations during the year, the law does not provide a limit on the number of investigations that can be conducted. Any incidents of actual or perceived discrimination that occur during the investigations will then be referred to the Commission’s law enforcement bureau.
This development should certainly give NYC employers reason to pause, as it arguably signifies a shift in the role of the Commission, which — according to its website — is “charged with the enforcement of the [NYC Human Rights Law] and with educating the public and encouraging positive community relations.” Specifically, the Commission’s Law Enforcement Bureau “is responsible for the intake, investigation, and prosecution of complaints alleging violations of the Law.” This new bill, however, directs the Commission not simply to use testers to investigate complaints of discrimination received from aggrieved applicants/employers (which it was permitted, but not required, to do in the past), but to affirmatively seek out discrimination where there is no existing complaint.
Employers in the five boroughs should prepare by reviewing their application and hiring policies and practices, and they may want to consider re-training managers with interviewing and/or hiring responsibilities. Simple tasks, such as double-checking job advertisements to ensure they are gender-neutral, providing assistance to disabled individuals who need to complete job applications, and avoiding inappropriate interview questions focused on protected characteristics can go a long way toward staying off of the Commission’s radar.