NYC Human Rights Commission Releases Discrimination Enforcement Statistics, Holds Hearing

Author: Marta Moakley, XpertHR Legal Editor

March 23, 2016

The New York City Commission on Human Rights collected nearly $1.4 million in awards and penalties in discrimination cases in 2015, according to enforcement data released by the agency. The average monetary recovery rose to $21,777 per case in 2015 from $9,725 in 2014. In addition, the Commission opened 755 investigations into potential discrimination in 2015, a 20 percent increase from 2014.

Carmelyn P. Malalis, Chair of the Commission on Human Rights, stated in a press release that "No one deserves to be discriminated against, but if they are, the New York City Commission on Human Rights is here to help them get the justice they deserve. The Commission strives to protect every New Yorker and thoroughly investigates complaints to strategically address violations of the Law."

The Commission enforces a number of employment discrimination protections in addition to the Human Rights Law (NYCHRL), including the City's Stop Credit Discrimination in Employment Act and the Fair Chance Act (FCA), which were both enacted in 2015. Damages and penalties under these laws range from $125,000 for any violations to $250,000 for willful violations.

In addition to processing employee complaints, in 2015, the Commission revamped its testing program, using paired testers whose credentials were similar in all respects except for varying characteristics protected under the NYCHRL.

New requirements for employers in 2016 include new protections for caregiver discrimination (effective in May) and may include proposed rules under the FCA.

On Monday, the Commission held a public hearing on its proposed rules to the City's "ban the box" law, which include a number of clarifications regarding existing definitions and would create a discretionary mechanism for the Commission to respond to charges of per se violations under the FCA.

The FCA provides for a number of per se violations (i.e., a violation "in and of itself," needing no other proof), including:

  • Advertisements, job postings or application forms stating that a background check will be conducted;
  • Making any inquiries or statements prior to the conditional offer stage;
  • Taking adverse action because of an arrest, but no associated conviction; and
  • Withdrawing a conditional job offer based on the applicant's criminal history without meeting the law's notice requirements (which include a pre-adverse action letter, copies of relevant legal protections and providing time for the applicant's response).

In addition to New York City requirements, employers with offices throughout the state may have additional compliance obligations. For example, Buffalo and Rochester have also enacted "ban the box" ordinances with differing requirements.