Interviewing and Selecting Job Candidates: New York
Federal law and guidance on this subject should be reviewed together with this section.
Author: Sean H. Close, Conair Corporation
- New York's laws against employment discrimination are broader than analogous federal laws in many respects, and employers must be aware of these distinctions in interviewing and selecting job candidates. See New York State Discrimination Law.
- New York protects job applicants from certain types of inquiries that would not be prohibited under federal laws against discrimination. See New York State Discrimination Law.
- New York's Human Rights Law covers employers with four or more employees and therefore applies to many small employers that might not be covered by federal employment laws. See New York State Discrimination Law.
- Employers generally may not discriminate against job applicants for engaging in lawful activities outside of work such as political activities. See Lawful Activities.
- An interviewer may not inquire into whether a New York job applicant was ever arrested if the applicant denies having been convicted of a crime unless the question relates to pending charges. See Arrest and Conviction Records.
- The state's biggest cities restrict private employers from asking criminal history questions on job applications. New York state agencies have stopped asking these questions at the application stage as well. See Ban the Box.
- There are certain limited exceptions to the New York State Human Rights Law regarding inquiries that would otherwise be considered discriminatory. See Bona Fide Occupational Qualification (BFOQ).
- Both New York State and New York City prohibit gender identity discrimination. See Gender Identity.
New York State Discrimination Law
The New York State Human Rights Law (NYSHRL) and various local human rights laws prohibit discrimination against job applicants on the basis of race, gender, disability, age, national origin, religion and other characteristics, many of which are also protected under federal law.
The NYSHRL largely mirrors federal statutes prohibiting discrimination such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). However, the NYSHRL offers additional protection to applicants beyond those provided by federal antidiscrimination statutes. The NYSHRL also covers employers that might not be covered under federal laws since any employer with four or more employees is covered by the NYSHRL.
The NYSHRL protects applicants as well as current employees. As a result, interviewers in New York State should take care to avoid questioning applicants about their race, sex, age, religion, genetic predisposition or carrier status, creed, color, pregnancy, marital status, national origin, disability or membership in any other protected class. Similarly, an employer should not use application materials that directly or indirectly seek information regarding an applicant's membership in a protected class.
Areas where New York laws differ from, or supplement, the protections provided to employees under federal laws are summarized below.
The ADEA prohibits discrimination against applicants for employment who are 40 years of age or older. The NYSHRL on the other hand prohibits age bias against any applicant who is at least 18 years of age.
Therefore, while employers in New York may ask applicants if they are 18 or older, they may not ask questions that would require applicants to identify their age or provide information from which the employer could identify their age.
The NYSHRL expressly prohibits discrimination based on sexual orientation, as do some local antidiscrimination statutes such as the New York City Human Rights Law. When conducting interviews of applicants, employers in New York State may not ask questions that directly or indirectly seek information concerning an applicant's sexual orientation.
Like the ADA, the NYSHRL bans employers from discriminating against an applicant for employment based on disability or genetic predisposition to a disability. However, the definition of disability is broader under New York law and therefore covers more individuals. Specifically, any medically diagnosable condition, or any impairment that can be demonstrated by medical diagnosis, is considered a disability in New York regardless of whether it limits a major life activity.
A medical condition may be considered a disability under the NYSHRL, even if it does not significantly limit the applicant's ability to perform the job in question or to perform other major life activities.
Many of the same guidelines for interviewing and screening applicants that apply under federal law also apply under New York law. The New York State Division of Human Rights also has published guidance concerning the types of inquiries an employer may make of an applicant for employment in New York. Specifically, an employer should avoid questions such as:
- Do you have a disability or medical condition?
- How many days were you absent from work last year due to sickness?
- Have you ever applied for workers' compensation benefits?
- Do you anticipate requesting leave for a medical condition if hired?
However, an employer may inquire into an applicant's ability to perform the specific job functions for which he or she was applying. For example, an employer may ask an applicant if he or she is able to meet the physical requirements of a particular position, such as standing for lengthy periods or lifting heavy objects.
New York law mirrors Title VII of the Civil Rights Act in its prohibition against discrimination based on an applicant's religion or creed. As a result, an employer generally may not ask applicants to divulge information concerning their religion, religious practices or religious observances.
However, the Human Rights Law explicitly permits religious institutions to give preference to applicants of the same religion or denomination if the position is directly related to the institution's promotion of its religious mission.
For example, a private Catholic university may inquire into an applicant's religion when hiring for a vacant position as the chairperson for the religious studies department. However, the same interview question might violate the Human Rights Law if asked of an applicant for a position as a mathematics professor or a security guard.
New York does not specifically prohibit discrimination based on immigration status. However, the New York State Division of Human Rights has taken the position that, while an employer may inquire into whether an applicant is a US citizen, it may not request information relating to the applicant's country of origin.
Similarly, if the applicant is a US citizen, the employer may not ask whether he or she is a naturalized or native-born citizen, nor may an employer inquire into the citizenship status of the applicant's spouse or parents.
New York bans discrimination against job applicants based on their marital status. As a result, employers may not directly ask applicants whether they are married or single. Employers also should avoid inquiries that could be viewed as an attempt to obtain such information indirectly.
For example, an employer should not ask a female applicant to identify herself by a personal title such as Miss, Mrs. or Ms.
Effective January 19, 2016, it will be a discriminatory practice for a New York employer to refuse to hire, employ, bar or discharge an individual from employment or to discriminate against that individual in compensation or in terms, conditions or privileges of employment based on his or her familial status. +2015 Bill Text NY S.B. 4.
New York law does not bar an employer from maintaining an anti-nepotism policy prohibiting the hiring of family members of current employees or prohibiting an employee from supervising, or working under the supervision of, a family member. Anti-nepotism policies will not violate the prohibition against discrimination based on marital status if they are enforced consistently. Therefore, an employer is permitted to inquire into whether an applicant has family member(s) who work for the employer in order to avoid a hiring decision that would conflict with an anti-nepotism policy.
Subject to certain narrow exceptions, an employer may not discriminate against an applicant for engaging in lawful activities outside of work. +NY CLS Labor § 201-d. For example, an employer may not question applicants about their political activities.
Similarly, an interviewer should avoid questioning applicants about their legal recreational activities, including their legal use of consumer products or membership in a union or other organization.
- Acme Corporation bans smoking in its workplace as required by local ordinance. Joe Smith, Acme's HR manager, interviews an applicant for an open position as a clerical worker. In the course of the interview, Smith observes that the applicant has a pack of cigarettes in his briefcase. Smith should not ask the applicant whether he is a smoker, nor may Acme disqualify the applicant based on its belief that he is a smoker.
- During the course of another interview, Acme's HR manager learns that an applicant is a political activist and member of a political party that espouses views Smith finds abhorrent. Smith may not consider the applicant's political affiliation in evaluating his or her application.
The NYSHRL bans discrimination against a job applicant based on the individual's status as a victim of domestic abuse or stalking. While it is difficult to imagine such a topic coming up in a job interview, employers should nevertheless be aware that they may not disqualify candidates based on domestic trouble of this nature.
The NYSHRL prohibits discrimination in employment based on military service. "Military service" is defined broadly as "a person's participation in the military service of the United States or the military service of the state, including but not limited to, the armed forces of the United States, the Army National Guard, the Air National Guard, the New York Naval Militia, the New York Guard, and such additional forces as may be created by the federal or state government or authorized by law."
In addition, the New York Military Law prohibits employers from refusing to employ citizens and residents of New York State because they are subject to military duty under federal or state law.
Arrest and Conviction Records
New York places explicit restrictions on employers with respect to seeking information regarding a job applicant's criminal history. Under New York's Correction Law, an employer may inquire into an applicant's prior criminal convictions, but may not disqualify an applicant based on a prior conviction unless the criminal offense is directly related to the position in question, or the conviction raises legitimate concern that the applicant would pose an "unreasonable risk" to other employees or to the general public if hired. +NY CLS Correc Law § 752.
In addition, all private employers in New York with 10 or more employees must post a criminal convictions record notice. Assuming that an employer learns in the course of a job interview, or from some other source, that an applicant has been convicted of a crime, the employer must consider several factors in deciding whether to deny employment based on a prior conviction:
- Information regarding the applicant's rehabilitation and good conduct since the conviction;
- The seriousness of the offense for which the applicant was convicted;
- The time elapsed since the criminal offense that resulted in conviction;
- The applicant's age when the offense was committed;
- The duties of the job for which the applicant is applying; and
- The relevance of the offense to the applicant's fitness or ability to perform the duties and responsibilities of the position.
Therefore, an interviewer may ask questions of an applicant that would address these factors.
A foster care agency has an opening for a child care worker at one of its group homes in New York City. The agency is considering hiring John for the position when it learns that John was convicted of a crime involving child abuse.
The agency may lawfully refuse to hire John as the prior conviction is directly related to the child care worker position and suggests that he would pose an unacceptable risk to the agency's clients.
If an applicant is denied employment based on a conviction, the employer is required to provide the applicant with a written statement explaining the reason he has been denied employment within 30 days upon request by the applicant for an explanation.
Under the Human Rights Law, an employer may not disqualify an applicant from employment based on an arrest or criminal charge that was resolved favorably to the applicant. +NY CLS Exec § 296.16. Therefore, an interviewer may not inquire into whether an applicant was ever arrested if the applicant denies having been convicted of a crime.
The prohibition against discrimination based on an applicant's arrest history does not specifically apply to arrests or criminal charges that are pending at the time of the employer's hiring determination. The New York State Division of Human Rights, however, has taken the position that an employer violates the NYSHRL when it makes any inquiry into an applicant's arrest history. As a result, these questions should be avoided in a job interview.
The prohibition against discrimination based on an applicant's arrest record does not apply to municipalities and other entities in connection with hiring of police or peace officers as those terms are defined in New York's Criminal Procedure Law.
Ban the Box
Since September 2015, New York state agencies no longer require job candidates to disclose information about prior criminal convictions on job applications. Applicants are not required to discuss or disclose such information until they have been interviewed for a position, and the state agency is interested in hiring them.
This policy is often referred to as "ban the box" in reference to eliminating the box on job applications that asks individuals if they ever have been convicted of a crime. New York's policy does not apply to private employers.
New York City Fair Chance Act
Effective October 27, 2015, the New York City Fair Chance Act prohibits employers with four or more employees from making any criminal inquiries, or conducting searches of public records and consumer reports containing criminal background information, until extending a conditional job offer. Employers that violate the FCA could be subject to punitive damages.
According to the New York City Commission on Human Rights, if an employer wants to withdraw a conditional employment offer its must consider the factors set forth in New York's Correction Law Article 23-A (Article 23-A) before denying employment. [LexisNexis "NY CLS Correc § 753"]. These factors include:
- Providing a written copy of the inquiry to the applicant;
- Performing an analysis of the applicant under New York's Correction Law Article 23A and providing a written copy of such analysis to the applicant, which shall include supporting documents that formed the basis for the adverse action and the employer's reason for taking such action; and
- Allowing the applicant a reasonable period of time to respond (no less than three business days), and holding the position open for the applicant during this time.
Limited exemptions are provided for police officers, peace officers, other law enforcement employees, and positions where the employer is required to conduct a criminal background check under federal, state or local law. However, even these employers may be subject to the factors set forth in Article 23-A before withdrawing an employment offer.
The New York City Commission on Human Rights has an enforcement guidance that expands on the language of the Fair Chance Act. The guidance says it is also a violation of the Act for an employer to print or circulate any solicitation, advertisement or publication for employment (including employment applications, fliers, handouts, online job postings and materials distributed at employment fairs) that state any limitation based on criminal history, even if no adverse action results.
This includes job advertisements and employment applications containing phrases such as: "no felonies," "background check required," and "must have clean record."
Effective January 1, 2014, a city ordinance also goes beyond state law and prevents the City of Buffalo, its vendors and any private employer located in Buffalo with 15 or more employees from asking questions relating to a job applicant's criminal history on an initial employment application.
Employers may be subject to penalties up to $500 for a first violation and $1,000 for each additional violation. Laws like this one are referred to as "ban the box" in reference to the box on job applications that applicants are often asked to check off if they have been convicted of a crime.
Exceptions are provided for the city's police and fire departments, as well as for jobs involving the supervision of children, young adults, senior citizens or the physically or mentally disabled. Criminal history questions are still permissible during job interviews.
Effective November 18, 2014, the City of Rochester bans public and private employers with four or more employees from asking about a candidate's criminal history during the application process. Under this law, the "application process" begins when an individual first inquires about employment and ends when an employer has finished an initial job interview or made a conditional offer of employment.
The ordinance also protects seasonal, contracted and contingent workers, as well as workers hired through an employment agency if the primary place of work will be located within Rochester. Employers that violate the law will be subject to a $500 fine for a first violation and a $1,000 penalty for each subsequent violation. An exception is carved out for city police and fire department applicants.
Effective March 22, 2015, the City of Syracuse prohibits any city contractor from making criminal history inquiries of prospective employees during the "application process." This measure also applies to the City's job application process, subject to limited exceptions such as for police officers. Under the ordinance, the application process does not end until an employer has extended a conditional job offer.
If a contractor wants to rescind a conditional offer based on the applicant's criminal history, it must provide the applicant with a copy of the criminal history report, highlight the conviction that warrants rescinding the offer and give the applicant five business days to challenge the accuracy of the report.
Noncompliant contractors may face the suspension and termination of any contract or agreement they have with Syracuse. The City also may bring an action to stop violations of the ordinance and to seek penalties ranging from $500 for a first violation to $1,000 for each subsequent violation.
Bona Fide Occupational Qualification (BFOQ)
The various prohibitions against preemployment inquiries that violate the Human Rights Law are subject to general exceptions that permit inquires relating to the applicant's age, race, creed, color, national origin, sex, sexual orientation, military status, marital status or freedom from disability, where such inquiries are based upon a bona fide occupational qualification. For instance, a restaurant seeking to hire an attendant for a male washroom, may generally disqualify female applicants from consideration.
Employers should note that this is a very narrow exception to the Human Rights Law and applies only in unique situations.
Effective January 19, 2016, an employer will be permitted to pay employees wage rates less than those paid to employees of the opposite sex for equal work if there is a bona fide factor other than sex, such as education, training, or experience. The factor cannot be based upon or derived from a sex-based differential in compensation and must be job-related and be consistent with business necessity. +2015 Bill Text NY S.B. 1.
Under Governor Andrew Cuomo's 2016 executive order and subsequent regulations, the NYSHRL prohibits discrimination, harassment and retaliation based on gender identity as well as gender dysphoria. A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.
Gender dysphoria is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth. Discrimination based on gender dysphoria constitutes disability discrimination. Under the law, transgender individuals or individuals with gender dysphoria may be entitled to reasonable accommodations in the workplace and the refusal to provide them may constitute discrimination.
New York City Ordinance
The NYCHRL prohibits discrimination based on gender identity. The New York City Commission on Human Rights recently released guidance interpreting and clarifying its prohibition on gender identity discrimination that covers such issues as:
- Failing to use an individual's preferred name or pronoun;
- Refusing to allow individuals to use single sex facilities and programs consistent with their gender identity;
- Sex stereotyping;
- Imposing different uniforms or grooming standards on different genders;
- Providing employee benefits that discriminate based on gender;
- Considering gender when evaluating accommodation requests;
- Engaging in discriminatory harassment; and
- Engaging in retaliation.
The guidance also states that the Commission can impose civil penalties of up to $125, 000 for violations and up to $250,000 for willful violations. In determining the amount the following will be considered:
- The severity of the particular violation;
- The existence of previous or subsequent violations;
- The employer's size including the number of employees and revenue; and
- The employer's actual or constructive knowledge of the NYCHRL.
Complainants who prevail may be entitled to back pay, front pay, compensatory and punitive damages.
In 2014, New York amended the NYSHRL to protect unpaid interns from discrimination, harassment and retaliation based on their age, race, sex, sexual orientation, national origin, marital status, disability, military status, domestic violence victim status, arrest record and genetic characteristics. The amended law also bars employers from advertising for an internship and expressing limitations, specifications or discrimination based on a protected category.
New York City Intern Ordinance
New York City prohibits employers from engaging in workplace discrimination, harassment and retaliation against interns based on their actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage or citizenship status, or status as a victim of domestic violence, sex offenses or stalking. This new law also requires employers to provide interns with reasonable accommodations.
Effective October 31, 2017, New York City employers may not ask about a prospective employee's salary history at any stage of the hiring process. This law also prohibits the searching of public records for an applicant's salary history. In addition, the law says that in the event an employer is somehow already aware of an applicant's salary history, then the employer may not rely on that information when determining the applicant's new salary.
The measure covers written or oral questions regarding wages, benefits and other compensation made of:
- An applicant;
- An applicant's current or former employer; or
- An agent of an applicant's current or former employer.
However, where an applicant voluntarily and without prompting discloses salary history to an employer or employment agency, the employer or employment agency may consider that history in determining salary, benefits and other compensation for that applicant.
An employer also may still discuss with applicants their expectations with respect to salary, benefits and other compensation, including unvested equity or deferred compensation that an applicant would forfeit by leaving their current job.
The law does not cover:
- Applicants for internal promotion or transfer with their current employer;
- Situations where federal, state or local law specifically authorizes the disclosure or verification of salary history for employment purposes, or specifically requires knowledge of salary history to determine an employee's compensation; or
- Any attempt by an employer or employment agency to verify an applicant's disclosure of non-salary related information or conduct a background check, provided that if such verification or background check discloses the applicant's salary history, the employer does not rely on that information for purposes of determining salary, benefits or other compensation.