NYC Commission Issues Guidance On Immigration and National Origin Discrimination; Expansion of Law to Cover Independent Contractors/Freelancers Soon to Follow

Seyfarth Synopsis:  The New York City Commission on Human Rights released guidance clarifying the New York City Human Rights Law’s restriction on discriminating against applicants and workers on the basis of actual or perceived “alienage and citizenship status” and “national origin.”  Additionally, the NYCHRL is likely to soon cover freelancers/independent contractors.

The New York City Human Rights Law (NYCHRL) prohibits discrimination, harassment, and retaliation on the basis of actual or perceived “alienage and citizenship status” and “national origin” in employment, housing, and public accommodations. 

The New York City Commission on Human Rights (NYCCHR) recently issued guidance and a fact sheet clarifying that unlawful discrimination constitutes “us[ing] of the terms ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend a person or persons in the workplace” and threatening to call federal immigration authorities - when doing so is motivated, in whole or in part, by the worker’s actual or perceived immigration status and/or national origin.

The guidance provides examples of unlawful discrimination on account of actual or perceived “alienage and citizenship status” and “national origin,” including: 

• Refusing to accept a Social Security card and demanding a birth certificate from an applicant who speaks English with an accent.
• Prohibiting workers from speaking Spanish while cleaning because it would “offend” hotel guests or make them uncomfortable.
• Prohibiting visa-holders from taking breaks during a shift, while permitting U.S. citizen workers to take breaks; and threatening not to sponsor foreign workers during the next season.
• Threatening to call U.S. Immigration and Customs Enforcement (ICE) if an employee misses work for any reason because they are an undocumented immigrant.

Expansion of Employees Covered by NYCHRL

The NYCHRL’s anti-discrimination provisions apply to undocumented employees and applicants.  During the hiring process, it is unlawful for employers to ask for documents that are more specific than those required by federal law, when the request is in any way motivated by discriminatory animus.  Questions about work authorizations must not be posed to harass or discriminate based on someone’s alienage and citizenship or national origin.

Liability

Undocumented immigrants can file claims of discrimination with the NYCCHR and in court.  Economic and emotional distress damages are available under the NYCHRL, regardless of an employee’s immigration status.  Additionally, violators of the NYCHRL may face fines of up to $250,000 for each instance of willful discrimination.

Likely Expansion of NYCHRL to Include Freelancers/Independent Contractors

In short order, the NYCHRL will prohibit employers from discriminating against independent contractors and freelancers.  The New York City Council passed a bill last month to include independent contractors and freelancers under the NYCHRL, which is awaiting the Mayor’s signature.  The bill also expands the employee-counting period so that the NYCHRL would apply to an employer that employed at least 4 workers at any time during the twelve months before the start of the discriminatory act.

Employer Takeaways

The tone of the guidance suggests a broad reading of the NYCHRL and foreshadows aggressive enforcement by the Commission. Right now is an opportune time for employers to review their compliance efforts and consider adjustments to existing policies and practices to ensure adherence to the new amendments as well as the likely expansion of coverage under the NYCHRL to include independent contractors and freelancers.