New York City’s Mayor De Blasio has signed into law a bill that requires the City Human Rights Commission to submit fake job applications to employers to test whether the employers use discriminatory practices. The Commission is required to have its “testers” conduct at least five tests, beginning October 1, 2015, but the law does not cap the number of tests that may be conducted. The employers targeted by the investigations need not have committed any violation, or even be suspected to have done so.
NYC Discrimination Law
New York City has always strictly forbidden employers from discriminating against applicants belonging to certain protected classes. It would be unlawful, for example, to refuse to hire applicants because of their race, age, sexual orientation, marital or partnership status, citizenship, or disability. It is also possible for employers to violate the City’s discrimination laws by publishing an advertisement or job posting that indicates they might prefer applicants that do not belong to a protected class. Advertising for a “waitress,” rather than the gender neutral term “waitstaff,” for example, could be in violation of NYC discrimination law.
The Testing Procedure
The new law requires that tests be conducted using a process called “matched pair testing.” In this test, an employer will receive two separate mock applications from testers, each with very similar credentials. Only one of these “applicants” will belong to a protected class that would be unlawful to discriminate against.
The objective of the test is to determine if the employer will select the unprotected applicant to advance in the application process, but fail to extend the same opportunity to the protected applicant. Although this type of testing has always been used by New York City agencies to investigate claims by an aggrieved applicant, this new law authorizes the tests even without a claim in place.
Penalties for Practicing Discrimination
The penalties for committing unlawful discrimination in New York City can be harsh, amounting to a maximum of $125,000 in civil penalties, or double that penalty for willful violations. However, the Commission has guidelines for reducing or eliminating these penalties if the employer in violation can show that it has routinely made certain efforts to prevent discriminatory practices. In determining the amount of a penalty, the Commission is authorized to consider the employer’s policies and procedures against discriminatory practices, and its effectiveness in training employees to implement them.
In anticipation of the wave of investigations coming this October, employers should take the time to ensure they have firm policies and procedures designed to prevent and detect accidental discrimination. Employees, especially those with hiring authority, should be made aware of anti-discrimination policies and trained to strictly follow them.