On December 23, 2022, Governor Hochule signed New York State Assembly Bill A6328A into law, amending New York Executive Law § 292 (known as the New York State Human Rights Law (NYSHRL)) to prohibit employment discrimination against employees and job applicants. Signed. Depending on citizenship and immigration status. The amendment, which became effective immediately upon Governor Hochul’s signature, prohibits employers from discriminating against, harassing or retaliating against anyone because of their citizenship or immigration status. The law defines “citizenship or immigration status” as “the citizenship or immigration status of any person who is not a citizen of the United States.”
The law does not expressly prohibit employers from checking the citizenship or immigration status of current and prospective employees for lawful purposes, as does the Immigration Reform and Control Act of 1986 (IRCA), which prevents employers from knowingly hiring undocumented immigrants, or individuals who are employed in the United States. Not authorized to do so. Under IRCA, if an employer knows that a particular job candidate does not have work authorization for US employment, the employer cannot, by law, hire such a job candidate. Thus, employers are permitted to take adverse action against individuals where required by law to do so.
Other similar federal, state and local laws
This new law, while significant in New York, is mirrored in other jurisdictions. At the federal level, the Immigration and Nationality Act, 8 USC § 1324(b), which the US Department of Justice enforces, prohibits employers from discriminatory hiring or termination based on an individual’s citizenship status.
The New York City Human Rights Law (NYCHRL) also prohibits New York City employers from discriminating based on a person’s perceived or actual “alienage and citizenship status” (where “alienage” is interchangeable with “immigration status”). The NYCHRL is more lenient toward individuals than the new state law, as it penalizes employers for discriminating against individuals based on both their actual and Got it Immigration or citizenship status. While the New York City Commission on Human Rights has published enforcement guidance for the New York City law, the state has not issued state enforcement guidance on its new law.
Looking ahead to New York, last August, Illinois amended the Illinois Human Rights Act (IHRA) to make it illegal for employers to discriminate against employees and job applicants because of their “work authorization status.” By adding this protected category to the IHRA, the Illinois legislature sought to protect the rights of persons born in the United States and authorized to work in the United States, even though they are not US citizens.
Recommendations
To ensure compliance with this new state law and avoid potential lawsuits, employers doing business in New York State should review their policies and practices and consider implementing the following practices:
- Clearly communicate to supervisors and/or managers that New York State has amended its laws to add citizenship or immigration status as protected categories and to identify prohibited discrimination, harassment and/or retaliation avenues.
- Revise employee handbooks, policies, and training materials to include anti-discrimination, harassment, and retaliation information based on an individual’s citizenship or immigration status.
- Review and update any policies that appear neutral on their face but, in practice, may have a disparate impact on employees and/or job applicants because of their citizenship or immigration status.
- How to train human resources personnel to (1) legally determine whether an applicant or employee is authorized to work in the United States, (2) avoid inquiring about the citizenship or immigration status of an employee or job applicant except for specific work authorization purposes, and (3) if an individual has provided valid documentation, no additional, unnecessary proof of US work authorization is required.
- Avoid hiring and making adverse employment decisions based solely on a person’s citizenship or immigration status unless that person is authorized to work in the United States.
Littler will continue to monitor developments regarding the implementation of the revised NYSHRL prohibiting discrimination based on citizenship or racial status, including its impact on the workplace.
