Employer Hiring Practices Undergo Novel Test in New York City

Author: David B. Weisenfeld, XpertHR Legal Editor

May 14, 2015

New York City employers may soon find their hiring practices going under the microscope. Under a law recently signed by Mayor Bill de Blasio, the New York City Commission on Human Rights will conduct discrimination testing to determine if targeted employers are using illegal bias when screening job applicants for employment.

The law requires the Commission to use paired testers whose credentials are similar in all respects but one - their protected characteristics. Thus, the testers will differ either with respect to their age, race, gender, sexual orientation or disability. The testers will apply for jobs with the same employer to evaluate whether the hiring process is discriminatory.

The Commission must conduct at least five of these "matched pair tests," with the first beginning on or before October 1, 2015. These investigations could target New York City employers, labor organizations or employment agencies. By March 1, 2017, the law requires the Commission to report its test findings to the City Council and refer any incidents of perceived or actual discrimination to the City's Law Enforcement Bureau.

Management-side employment attorney Jason Habinksy, of Haynes & Boone, calls the tester program "a real shift in the role of the New York City Human Rights Commission." Speaking of the program, he says, "Employers should make sure to notify all human resources personnel about the program and tell them to assume that any applicant could be a tester."

Habinsky adds that employers should ensure that job advertisements are neutral and inform individuals who screen job applicants that they should be very careful to review applications and conduct interviews in a non-discriminatory fashion, focusing on job-related skills.

Testers have long been used to ferret out racial discrimination by landlords who refuse to rent to minorities. In fact, the Supreme Court approved the use of testing to uncover housing discrimination in Havens Realty v. Coleman.

In 2000, the Chicago-based 7th Circuit Court of Appeals ruled that employment testers also had standing to sue under Title VII of the Civil Rights Act. The appellate court explained in Kyles v. J.K. Guardian Security Services that the fact that testers have no interest in a job does not diminish the deterrent role they play. The court reasoned that allowing the testers to bring suit is consistent with Title VII's strong public interest in eliminating employment discrimination. The company ultimately won a jury verdict in the case.