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NYC Human Rights Comm'n issues guidelines re: immigration status

The New York City Commission on Human Rights is best known for its regulation of discrimination in housing and public accommodations, but it also has great power to control discrimination in the workplace. The Commission recently used this power by issuing new enforcement guidance concerning discrimination in employment decisions based upon actual or perceived national origin or immigration status.

Before continuing, we must digress a bit to explain the difference between a statute or regulation and the commission's enforcement guidance. A statute or regulation that is enacted by the commission has the same force as if it were enacted by the legislature. An enforcement guidance, on the other hand, is merely an indication of how the agency plans to interpret or enforce an existing regulation. While the recent guidance concerning national origin and immigration status is not technically binding, it nevertheless provides important signposts about the agency's intentions regarding how it will interpret the existing law on these subjects.

The enforcement guidance essentially says that once a person has been hired, that person has the same rights under the New York City Human Rights Law as any other person, regardless of the new employee's immigration status or work authorization. The guidance says that an employer violates the NYCHRL if it discriminates among workers based upon their race or their status as citizens, permanent residents, refugees, asylees, and those granted lawful temporary status. The guidance enumerates several examples of prohibited discrimination that are too lengthy to be summarized in this post. Among the examples of prohibited conduct are inconsistent questioning of workers based upon immigration status, asking to see work authorization documents before an individual accepts a job offer, and telling a worker that their rights are limited because of their immigration status.

Anyone with questions about the underlying anti-discrimination law or the enforcement guidance may wish to contact an experienced employment attorney for further information.

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