On December 23, 2022, Governor Hochul signed into law New York State Assembly Bill A6328A, amending the 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 became effective immediately upon Governor Hochul's signature, prohibits employers from discriminating, harassing, or retaliating against any individual because of their citizenship or immigration status. The law defines "citizenship or immigration status" as "citizenship of any person or the immigration status of any person who is not a citizen of the United States."

The law does not expressly ban employers from checking the citizenship or immigration status of current and prospective employees for lawful purposes, such as to comply with the Immigration Reform and Control Act of 1986 (IRCA), which prevents employers from knowingly hiring undocumented immigrants, or individuals who are not authorized to be employed in the United States. Under the IRCA, if an employer knows that a certain job candidate does not have work authorization for U.S. employment, the employer cannot, by law, hire such job candidate. Thus, employers are permitted to take adverse actions against individuals where obligated to do so by law.

Other Similiar Federal, State, and Local Laws

This new law, while significant in New York, is mirrored in other jurisdictions. On the federal level, the Immigration and Nationality Act, 8 USC § 1324(b), which the U.S. Department of Justice enforces, bans 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" (wherein "alienage" 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 both their actual and perceived 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 an enforcement guidance from the state on its new law.

Looking beyond New York, last August, Illinois amended the Illinois Human Rights Act (IHRA) to make it unlawful for employers to discriminate against employees and job applicants due to their "work authorization status." By adding this protected category to the IHRA, the Illinois legislature sought to protect the rights of individuals not born in the United States and not a U.S. citizen, yet authorized to work in the United States.

Recommendations

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 anti-discrimination, harassment, and retaliation based on an individual's citizenship or immigration status.

• Review and update any policies that appear neutral on their face but may, in practice, have a disparate impact on employees and/or job applicants due to their citizenship or immigration status.

• Train human resources personnel on how to (1) lawfully determine whether an applicant or employee is authorized to work in the United States, (2) to refrain from inquiring about an employee's or job applicant's citizenship or immigration status unless for a specific work authorization purpose, and (3) if an individual has provided valid documentation, to forgo requiring any additional, unnecessary proof of U.S. work authorization.

• Avoid making hiring and adverse employment decisions solely based 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 discrimination status, including its impact in the workplace.

Posted: December 29, 2022

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