New York City Human Rights ‘Tester’ Law Set to Uncover Discrimination in Hiring
City anti-discrimination agents posing as job applicants will soon be knocking on employers’ doors in the five boroughs to ferret out discrimination in hiring practices. Seeking to strengthen the New York City Human Rights Commission’s transparency in enforcing the New York City Human Rights Law, according to an announcement, New York City Mayor Bill de Blasio on April 20 signed legislation establishing an official employment discrimination testing and investigation program that could hale employers into court to face complaints of unlawful bias in hiring, among other things. The law was passed by the City Council on March 31.
Under this year-long program, which must begin on or before October 1, 2015, the Commission will use a technique known as “matched pair testing” to conduct at least five investigations into the employment practices of employers in the City. Two “testers” will inquire about, express interest in, or apply for the same job with a local employer. The testers will have similar credentials, but will differ with respect to actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status, or another characteristic protected under the New York City Human Rights Law. The purpose of the testing is to determine whether the targeted employers are using discriminatory practices when screening and considering applicants. (Pursuant to similar legislation also signed into law on April 20, testers will be used to evaluate if landlords engage in discriminatory practices.)
On or before March 1, 2017, the Commission must report its results to the Speaker of the City Council and refer any incidents of discrimination to the Law Enforcement Bureau for further investigation.
While agencies such as the Commission have used testers in the past, this is the first formal legislation enacted authorizing the city agency to search for discrimination, as opposed to investigate reactively discrimination claims filed by allegedly aggrieved parties.
Employers must ensure job advertisements are non-discriminatory and that individuals who review applications and conduct interviews focus on job-related skills and abilities, not protected characteristics. Job applicant screeners may follow a precautionary approach of assuming every applicant is an official tester.
More pro-employee legislation is expected to be enacted in New York City soon. The Mayor is expected to sign legislation generally prohibiting credit checks in employment. (See our article, New York City Council Tightens Employers’ Use of Credit Information of Applicants, Employees.) Further, the City Council is considering a ban-the-box bill.