Part I: Advertising and Interviewing

Foreign companies expanding their operations to the U.S. through New York usually handle their U.S. hiring process like the way they do back in their home country. They should not.

While many states place restrictions on the hiring process, New York offers extensive and singular protection to prospective employees whose content and scope is not necessarily in the mind of all U.S. employers; foreign-based ones should, therefore, be even more careful. From posting a job offer to running a background check, New York employment law constantly evolves and thus provides many pitfalls that can turn any hiring process into a costly and lengthy litigation. This article is the first in a two-part series that will address certain key New York laws regarding (1) advertising and interviewing for a job, and (2) offer letters and background checks.

Advertising For a Position

While job advertisements related to an open position with a company may be a routine matter, they can expose employers to significant liability if they show a preference for or discourage an applicant from applying for a job based on their membership in a protected category. Federal, state and local laws each expressly prohibit discriminatory job postings, and employers who hire in New York are often subject to stringent requirements. On the federal level, Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits advertisements that prefer or discourage individuals on the basis of race, color, religion, sex, national origin, age, disability, or genetic information. In the state of New York, the New York State Human Rights Law (“NYSHRL”) prohibits job postings that discriminate on the basis of all of the categories protected by Title VII, along with gender identity, marriage or partnership status, pregnancy, sexual orientation or status as a veteran or active military service member. Finally, for New York City employers, the New York City Human Rights Law (“NYCHRL”) prohibits discrimination against all categories protected by Title VII and the NYSHRL, along with arrest or conviction record, caregiver status, credit history, salary history, status as a victim of domestic violence, sexual violence, or stalking, and unemployment status.

Given the multitude of protected categories in New York, employers who hire in the state should create job postings and related advertising materials with care and attention. Language that might seem innocuous could be grounds for lawsuit if it seeks or discourages particular types of applicants. For instance, consider the following protected categories and sample advertising language that could be deemed discriminatory:

  • Age: advertisements stating that the company seeks “young” applicants, applicants with just a few years of experience in the relevant field, or advertisements containing references to youth such as “energetic” or “fresh-faced”;
  • Gender: advertisements that use gendered terminology, such as an advertisement for a “busboy” or “waitress”;
  • Disability: advertisements seeking “able-bodied” applicants, or that say that an applicant “must be in good health;”
  • National Origin: advertisements stating that the company prefers “American-born” employees or that describe the workplace as “English only”;
  • Religion: advertisements with language such as “seeking someone with Christian values”;
  • Arrest or Conviction Record: advertisements stating “felons need not apply,” or “clean records only.”

To avoid running afoul of applicable law, employers who hire in New York should tailor their job postings to focus on the job duties inherent in the position and minimum educational and/or experiential qualifications for the position, rather than focusing on personal qualities of the ideal applicant.

Interviewing a Prospective Employee

Like job postings, applicant interviews may expose New York employers to claims for discrimination and costly litigation. To avoid this outcome, New York employers should select their interview questions carefully to avoid queries that might tend to discourage applicants in a protected class from future employment, or indicate that the company prefers individuals outside of that class. While the types of problematic interview questions are too numerous to list, sample interview questions that could give rise to a claim for discrimination under Title VII, the NYSHRL and/or the NYCHRL are as follows:

  • Questions About National Origin: While employers may ask if an employee is eligible to work in the United States, they generally may not inquire about an applicant’s place of birth or immigration status.
  • Questions About Religion: New York employers may ask if an employee is available to work on certain days, but should not tie the inquiry to religion. For example, while an employer may ask if an applicant is free to work on Saturdays, questions like “what religious holidays do you observe?” are impermissible.
  • Questions About Pregnancy: Because New York employers may not discriminate against applicants on the basis of pregnancy, employers should not inquire about an applicant’s current pregnancy status or plans to have a family in the future.
  • Questions About Caregiver Status: New York City employers cannot discriminate against an applicant on the basis of his or her caregiver status under the NYCHRL. New York City employers should not inquire, for instance, about the number of children the applicant has, or whether he or she has older or ailing relatives that might require care.
  • Questions About Salary History: The NYCHRL prohibits New York City employers from asking an applicant about his or her prior or current salary, benefits or other compensation; relying on an applicant’s compensation history in offering or setting compensation; and using the applicant’s salary history to set the applicant’s compensation.  

Foreign employers expanding their operations in New York (city and or state) should, therefore, be cautious when it comes to advertising for a position or interviewing a prospective employee. Being a foreign company conducting business in New York provides no excuse to avoid New York employment law, but in fact can be quite the opposite: an easy target for zealous litigants.

*Karl Buhler is a Law Clerk in Sheppard Mullin’s New York office.