New York State Provides Protection for Individuals Based on Citizenship and Immigration Status | Littler
On December 23, 2022, Governor Hochul signed into law New York State Assembly Bill A6328A, 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. based on citizenship and immigration status. This amendment, which took effect immediately after Governor Hochul’s signature, prohibits employers from discriminating against, harassing or retaliating against any individual because of 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, such as compliance with the Immigration Reform and Control Act of 1986 (IRCA), which prevents employers from knowingly employ undocumented immigrants, or individuals who are not authorized to be employed in the United States. Under IRCA, if an employer knows that a particular job candidate does not have work authorization for employment in the US, the employer cannot, by law, hire such a job candidate. Thus, employers are permitted to take adverse action against individuals when they are required to do so by law.
Other similar federal, state and local laws
This new law, while important in New York, has been 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 “alien and citizenship status” (where “alien” is interchangeable with “immigration status”). The NYCHRL is more generous to individuals than the new state law, as it penalizes employers for discriminating against an individual based on their fact and PERCEIVED immigration or citizenship status. While the New York City Commission on Human Rights has published guidelines for implementing the New York City law, the state has not issued a state enforcement guideline for its new law.
Looking beyond 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 “work authorization status.” By adding this protected category to the IHRA, the Illinois legislature sought to protect the rights of individuals who were not born in the United States and are not US citizens but authorized to work in the United States.
To ensure compliance with this new state law and avoid potential claims, 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 law to add citizenship or immigration status as protected categories and identify ways to prevent prohibited discrimination, harassment and/or retaliation .
- Revise employee handbooks, policies, and training materials to include information on antidiscrimination, harassment, and retaliation 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.
- Train human resources personnel how to (1) legally determine whether an applicant or employee is authorized to work in the United States, (2) refrain from asking about an employee’s citizenship or immigration status, or the job applicant, unless for a specific work authorization purpose, and (3) if an individual has provided valid documentation, waive the requirement for any additional, unnecessary proof of US work authorization.
- Avoid making adverse hiring and employment decisions based solely on an individual’s citizenship or immigration status, unless that individual is not authorized to work in the United States.
Littler will continue to monitor developments regarding the implementation of the amended NYSHRL prohibiting discrimination based on citizenship or status discrimination, including its impact on the workplace.