Legal Enforcement Guidance on Discrimination on the Basis of Immigration Status and National Origin - CCHR

Human Rights

Combating Discrimination Since 1955


Legal LibraryTestimonySexual Harassment

Text of the NYC Human Rights Law
Amendments
Legal Enforcement Guidance
Commission Rules
NYC Charter
Executive Orders
Advisories and Legal Notices
Amicus Briefs & Comments on Proposed Rules
Public Hearings
Settlement Highlights
Decisions & Orders
Law Review Articles

Text of the NYC Human Rights Law

Amendments

Legal Enforcement Guidance

Commission Rules

NYC Charter

Executive Orders

Advisories and Legal Notices

Amicus Briefs & Comments on Proposed Rules

Public Hearings

Settlement Highlights

Decisions & Orders

Law Review Articles


Legal Enforcement Guidance on Discrimination on the Basis of Immigration Status and National Origin[1]

Last updated: January 2025

Download in PDF format

I. Introduction

Immigrants are an integral part of New York City—culturally, linguistically, and economically. Immigrants lead and participate in houses of worship, non-profit organizations, corporations, small businesses, City agencies, and educational institutions. New York has long been a destination for people from around the world, and that is a core part of the city’s vibrancy and strength.

Approximately 3 million New York City residents were born outside of the United States, representing 40% of the City’s population.[2] Nearly 1.3 million New York City residents are noncitizens.[3] Approximately 60% of New Yorkers live in a household with at least one immigrant.[4] New York is also among the most linguistically diverse cities in the world, with hundreds of languages being spoken throughout the five boroughs[5].

The New York City Human Rights Law (“NYCHRL”) prohibits discrimination on the basis of actual or perceived “immigration and citizenship status,” and “national origin,[6] among other categories, by employers[7] ,housing providers[8] and providers of public accommodations[9] in New York City. The NYCHRL also prohibits discriminatory harassment[10] and bias-based profiling by law enforcement.[11] The NYCHRL must be construed “independently from similar or identical provisions of New York State or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”[12] In addition, exemptions to the NYCHRL must be construed "narrowly in order to maximize deterrence of discriminatory conduct."[13]

The New York City Commission on Human Rights (the “Commission”) is the City agency charged with enforcing the NYCHRL. Anyone who believes their rights under the NYCHRL have been violated can file a complaint with the Commission’s Law Enforcement Bureau within one year of the discriminatory act and within three years for claims of gender-based harassment.[14] Alternatively, a person can choose to file a complaint in court within three years of the discriminatory act.[15]

The Commission has procedures in place to protect confidential information and does not inquire as to immigration status. While the Commission generally does not ask for or collect information about immigration status from complainants, respondents, or witnesses, when such information is integral to a case, the agency has the authority to seek protective orders in order to protect all parties from disclosure of confidential information.[16] Additionally, the Commission can receive anonymous complaints and initiate an investigation in the public interest, without naming an individual complainant.[17]

“Immigration or citizenship status” is defined by the NYCHRL to mean: "(a) the citizenship of any person, or (b) the immigration status of any person who is not a citizen or national of the United States."[18] In 2020, the NYCHRL was amended to use these terms.[19] Prior to 2020, materials explaining the law used “alienage,” while recognizing that the term was offensive[20] and employing the term “immigration status” whenever possible. “Alien”—used in many federal, state, and local laws across the country to refer to a person who does not have U.S. citizenship—is a term that may carry negative connotations and dehumanize immigrants, marking them as "other"[21] As explained in Section III, the use of certain terms, such as “illegals,” by employers, housing providers, and public accommodations with the intent to harass, demean, or offend can constitute discrimination under the NYCHRL.[22]

In addition, discrimination based on immigration status often overlaps with discrimination based on national origin and/or religion. The "line between discrimination based on ancestry or ethnic characteristics, and discrimination based on place or nation of . . . origin, is not a bright one,"[23] and it is often difficult to disentangle the motivation behind discriminatory animus based on immigration status, national origin, and other protected categories. Individuals who feel they have experienced discrimination may file a complaint under any or all of the categories that relate to their claim.[24]

It is a best practice for covered entities to implement internal anti-discrimination policies to educate employees, tenants, and, in the context of public accommodations, patrons, patients, and program participants, of their rights and obligations under the NYCHRL, and to regularly train staff on these issues. Covered entities should create procedures for employees, residents, and program participants to internally report violations of the law without fear of adverse action and train those in supervisory roles on how to respond when they witness discrimination or instances are reported to them by subordinates. Covered entities that engage with the public should implement a policy for doing so in a respectful, non-discriminatory manner consistent with the NYCHRL.

II. Legislative History of the NYCHRL’s Protections Regarding Immigration Status

In 1965, Local Law 97 amended the NYCHRL to add “national origin” as a protected category in employment, public accommodations, and housing.[25] Two decades later, the federal government passed the Immigration Reform and Control Act of 1986 (“IRCA”)—a statute that changed the landscape of immigration law by creating sanctions for employers who hire undocumented workers,[26] legalizing the presence of certain seasonal agricultural undocumented immigrants, and granting amnesty for many immigrants who entered the United States before January 1, 1982.[27]

However, after the passage of IRCA, in New York City[28] and New York State,[29] some employers continued discriminating against immigrant New Yorkers by asking only “foreign-looking” applicants for work authorization documents, hiring only U.S. citizens, and/or refusing to accept legally valid proof of residency, among other discriminatory practices.” As a result, the City enacted Local Law 52 of 1989, which added “alienage or citizenship status” as a protected category to the NYCHRL,[30] and provided anti-discrimination protections to all immigrants, regardless of documentation status.[31] More recently, Local Law 58 of 2020 replaced the term “alienage” with “immigration".[32]

III. Violations of the NYCHRL Based on Immigration Status and National Origin

A. Disparate Treatment

Disparate treatment occurs when a covered entity treats a person less well than others because of a protected characteristic.[33] Disparate treatment based on a person’s actual or perceived immigration status or national origin is prohibited in employment, housing, and places of public accommodation.[34] Disparate treatment may be overt, or more subtle. Disparate treatment can manifest through policies, treatment, harassment, and actions based on stereotypes or assumptions.

Disparate treatment based on actual or perceived immigration status or national origin includes expressing animus towards a person based on characteristics closely associated with their actual or perceived immigration status or national origin. For example, discriminating against someone because of their accent, English proficiency, or use of another language[35] is discrimination based on immigration status and/or national origin.

To establish disparate treatment under the NYCHRL, a person must show that they were treated less well or subjected to an adverse action at least in part because of their membership in a protected class.[36] A person may demonstrate this through direct evidence of discrimination or indirect evidence that gives rise to an inference of discrimination.[37]

1. Employment

It is unlawful to discriminate in the terms and conditions of employment because of a job applicant’s or employee’s actual or perceived immigration status or national origin.[38] This means that adverse actions – such as differential pay, differential access to leave, and denial of promotions – and discriminatory policies based on these protected categories violate the NYCHRL. As discussed further below, the NYCHRL provides that compliance with federal, state, or local laws that expressly permit an employer’s inquiry into immigration status in limited circumstances (such as to verify new employees’ work authorization) is not discriminatory conduct.[39] However, if an employer decides to hire someone regardless of work authorization, the employer is prohibited from exploiting, harassing, or otherwise discriminating against the employee. Such treatment violates the NYCHRL.

a. Hiring Practices

The NYCHRL acknowledges that different treatment of individuals based on immigration status may be explicitly required under federal or state law with respect to hiring.[40] Pursuant to IRCA, employers are not permitted to knowingly hire or employ individuals without work authorization.[41] Federal law allows employers to prefer to hire a U.S. citizen or national over a noncitizen when two candidates are "equally qualified".[42] Outside of this limited circumstance, it is a violation of the NYCHRL for employers to discriminate among work-authorized individuals—including, but not limited to, citizens, permanent residents, refugees, asylees, and those granted lawful temporary status—unless required or explicitly permitted by law.[43] For further discussion on the interaction between the NYCHRL and federal and state law with respect to hiring and employment, see infra Section IV.

Employers may not ask applicants questions related to work authorization in an inconsistent manner based on actual or perceived immigration status or national origin. For example, an employer may not ask someone who speaks with an accent whether they have work authorization if the employer does not ask the same question of someone who does not speak with an accent.[44]

It is a violation of the NYCHRL for workers to be treated less well than any other employee because of their immigration status, including the status of being undocumented.[45]

b. Document Abuse

Federal law requires that, at the outset of employment, employees, in most circumstances, complete a Form I-9 to verify the employee’s identity and work authorization for employment in the United States.[46] An employer verifying a person’s identity and work authorization must not demand specific documents beyond what is required to establish work authorization under federal law. Federal law requires employers to accept any document an employee presents from the “List of Acceptable Documents” established by statute,[47] so long as the document “reasonably appears to be genuine and to relate to the employee.”[48] When motivated in whole or in part by discriminatory animus, employers violate the NYCHRL if they demand that an employee show specific documents, such as a green card or birth certificate, to establish identity and/or work authorization when an employee can or has provided other documentation that satisfies the federal requirements; ask to see work authorization documents before an individual accepts a job offer; refuse to accept a document or deny a person a job because the person provided a document that will expire in the future; or demand only one specific document when reverifying an employee’s work authorization, as long as the employee can satisfy the federal requirements in a different way.[49] Such practices constitute “unfair documentary practices,”[50] and are also referred to as document abuse. These practices are unlawful under the NYCHRL because they subject applicants to discriminatory treatment based on their actual or perceived immigration status or national origin.

Federal law specifically authorizes employers to reverify an employee’s work authorization in the following limited circumstances: (1) the employee’s work authorization is expiring;[51] (2) an employer develops “constructive knowledge”[52] that the employee is not work-authorized;[53] (3) the employer conducts a neutral, non-discriminatory self-audit of their compliance with work authorization requirements;[54] or (4) as part of an I-9 inspection by the federal government.[55] Federal law also requires some employers with federal contracts or subcontracts to verify the work authorization of their current employees using the federal government’s E-Verify system.[56] In contrast, reinstatement of an employee’s position, such as when the employee returns from medical or parental leave, does not trigger the federal requirements for checking an employee’s eligibility.[57] Federal rules provide that an employer “is not deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times,” as, for example, when an employee is being promoted, transferred to a different unit, or is on strike. Accordingly, such events do not trigger requirements for reverification.[58] An employer that acquires a new company in a merger and acquisition is permitted to choose how to treat employees who are continuing their employment with the related successor after the merger. If the new employer treats these employees as new hires, the employer must complete a new Form I-9 for work authorization for all employees of the acquired company; if the new employer considers these employees as continuing their employment, the employer is only required to obtain and maintain the previously completed Form I-9.[59]

Reverification of employment is unlawful under the NYCHRL when it is based on discriminatory animus towards an employee’s actual or perceived immigration status or national origin or other protected category under the NYCHRL and takes place outside circumstances permitted under federal law.[60] It is also unlawful under the NYCHRL to use reverification as a tool to retaliate against workers who have engaged in protected activity under the NYCHRL.[61]

Communications from a government entity that ask an employer to verify an employee’s identifying information should not be the basis for an adverse action based on immigration status that is not warranted by the specific circumstances.[62]

c. Immigration Worksite Enforcement

Worksite enforcement is one form of immigration enforcement conducted at times by the federal government. Immigration worksite enforcement occurs in two main ways: (1) in the form of field enforcement (commonly referred to as raids), in which Immigration and Customs Enforcement (“ICE”) physically comes to a worksite unannounced to inspect files and/or detain workers who they determine may be unlawfully present;[63] or (2) in the form of an I-9 audit, in which ICE requires employers to submit their employment authorization records, usually within three business days, for verification.[64]

Exploiting or threatening ICE enforcement, in order to further a discriminatory motive, to harass or intimidate employees, or to retaliate against employees for engaging in protected activity[65] is a violation of the NYCHRL.[66]

d. Employment Protections for Undocumented Immigrant Workers

Undocumented immigrant workers have the same protections under the NYCHRL as any other employee, regardless of their immigration status or work authorization.[67] Undocumented immigrants can file claims of discrimination at the Commission or in court. Remedies, including but not limited to economic and emotional distress damages, are available under the NYCHRL regardless of an employee’s immigration status.

e. Harassment

Disparate treatment may manifest as harassment when the incident or behavior creates, reflects, or fosters a work culture or atmosphere that is demeaning, humiliating, or offensive. Harassment related to an individual’s actual or perceived immigration status or national origin is a form of discrimination, and may consist of a single or isolated incident or a pattern of repeated acts or behavior. Under the NYCHRL, harassment related to immigration status or national origin in the workplace covers a broad range of conduct and generally occurs when an individual is treated less well on account of their actual or perceived immigration status. The severity or pervasiveness of the harassment is only relevant to the determination of an award for damages, not the determination of whether a violation occurred.[68] Depending on the circumstances, even an employer’s joke or single comment intended to demean, humiliate, or harass may be enough to constitute harassment.[69]

The use of the terms “illegal alien” and “illegals,” motivated in whole or in part to demean, humiliate, or offend a person or persons in the workplace, also amounts to unlawful discrimination under the NYCHRL. As with other forms of harassment, employers are strictly liable for an unlawful discriminatory practice where the harasser exercises managerial or supervisory responsibility.[70] Employers may be held liable for a non-managerial employee’s harassment if the employer: (1) knew about the employee’s conduct and “acquiesced in such conduct or failed to take immediate and appropriate corrective action,”[71] or (2) should have known about the employee’s discriminatory conduct and “failed to exercise reasonable diligence to prevent such discriminatory conduct.”[72]

Employer threats to call federal immigration authorities can constitute unlawful harassment under the NYCHRL when motivated, in whole or in part, by animus related to the employee’s actual or perceived immigration status and/or national origin. In addition, using the specter of calling immigration authorities or the police to force employees to work in unsafe, unequal, or otherwise unlawful conditions is unlawful harassment under the NYCHRL.[73] While reporting a violation of the law to the police is otherwise permitted, it is a violation of the NYCHRL when such action is taken or threats to take such action are made based solely on a discriminatory or retaliatory motive.[74] If workers have engaged in any protected activity, such reports to authorities may be actionable as retaliation.[75]

Examples of Disparate Treatment in Employment

A construction company sponsors a temporary worker for the summer with an H-2B visa. The company does not allow the worker to take any breaks for his twelve-hour shift, while the company allows U.S. citizen workers to take two breaks during their twelve-hour shifts. The company threatens to not sponsor the worker again for next season when he complains.

An employee develops a medical condition and requests an accommodation to attend necessary medical appointments once a week. The employer denies her request. When the employee informs her employer that another employee is permitted to leave work for medical appointments, the employer tells her that she does not have that right because she is an undocumented immigrant. The employer then threatens to call ICE if she misses work for any reason.

An employer verifying work authorization refuses to accept a Social Security card and demands a birth certificate from a job applicant because the applicant speaks English with an accent.

A hotel prohibits its housekeepers from speaking Spanish while cleaning because it would “offend” hotel guests or make them uncomfortable.

A construction company provides workers from one national origin first priority in scheduling and time off to the disadvantage of workers with other backgrounds.

2. Housing

It is unlawful to sell, rent, or lease housing with different terms, conditions, or privileges or to misrepresent the availability of housing to someone because of their actual or perceived immigration status or national origin.[76] It is also unlawful to post an advertisement for housing that discriminates based on membership in a protected category.[77] Under the NYCHRL, practices or policies that single out tenants, home buyers, or housing applicants based on their actual or perceived immigration status or national origin are unlawful disparate treatment unless the covered entity can demonstrate a legitimate non-discriminatory justification for the distinction.

Adverse treatment may be overt, such as refusing to accept a rental application for an apartment because the applicant is not a U.S. citizen, or may be subtle, such as a landlord telling an applicant that an apartment is no longer available after hearing the applicant speak English with an accent. Landlords may not ignore tenants’ requests for repairs, create or allow unsafe conditions, or fail to provide adequate heat because of tenants’ actual or perceived immigration status or national origin.

There are very limited circumstances in which immigration status is relevant and can factor into one’s eligibility to access certain housing-related benefits. For example, a public housing provider may be required to ask about a benefit applicant’s immigration status to ascertain eligibility for a federal program.[78] However, information requested should be limited to what is required and may not be used as an excuse for discrimination to treat an applicant or tenant less well than others.

a. Immigration Status and National Origin Cannot be Considered in Rental and Home Purchase Transactions

Housing providers cannot refuse to rent or sell, and cannot alter the terms and conditions of housing, because of actual or perceived immigration status or national origin. So, even where a housing provider lawfully obtains immigration status to ascertain federal program eligibility, that information cannot then be used to impose new rental terms such as a change in rent, or asking for a co-signer. Some personal information may be necessary to complete an application for housing: generally, landlords, sellers, and their agents are permitted to request photo identification and other personal information for purposes of running a credit inquiry. This may include a driver’s license or non-driver’s State identification card, a passport, an SSN, or an individual tax identification number (“ITIN”). However, questions related to immigration status or national origin are discouraged and may be a basis for presuming discriminatory animus. For example, if a landlord tells an applicant they will only accept a passport or an SSN for purposes of a credit check and refuses alternative forms of identification or documentation sufficient to run a credit check, such actions may be pretext for discrimination.[79]

Under New York State law, landlords are required to place security deposits in an escrow account separate and apart from the landlord’s personal funds.[80] A landlord does not need a tenant’s SSN in order to open an escrow account for the security deposit in the tenant’s name.[81] Accordingly, if a landlord insists that they require an SSN for an escrow account, does not offer an alternative arrangement if no SSN can be provided,[82] and rejects a prospective tenant on that basis, it may be considered as pretext for discrimination based on immigration status or national origin under the NYCHRL. With respect to home purchases, it is also an unlawful discriminatory practice under the NYCHRL for any individual, bank, trust company, loan association, credit union, mortgage company, or other financial institution or lender or any agent thereof to discriminate against applicants in the granting, withholding, extending or renewing, or in the fixing of rates, terms, or conditions of any mortgage because of a prospective occupant’s actual or perceived immigration status or national origin.[83]

b. Housing Protections for Undocumented Immigrant Tenants

Undocumented immigrant tenants and those seeking housing are protected from discrimination by individuals who sell, rent, or lease housing, including owners, other tenants, managing agents, real estate brokers, and real estate agents. Tenants with and without leases are protected from being evicted based on immigration status and national origin, so long as they comply with local housing law. In most circumstances, regardless of immigration status, tenants may be evicted only after the landlord has served them with a termination notice and obtained judicial authorization.[84] Only a sheriff, marshal, or constable, not a landlord, can carry out a court-ordered eviction.[85] A landlord’s efforts to evict any tenant through intimidation, coercion, or by making the premises uninhabitable, when motivated in whole or in part by a tenant’s actual or perceived immigration status or national origin, are unlawful under the NYCHRL.

c. Harassment

Under the NYCHRL, harassment related to immigration status or national origin covers a broad range of conduct and occurs generally when an individual is treated less well because of their actual or perceived immigration status or national origin. Such treatment may be demeaning, humiliating, or offensive. Depending on the circumstances, a joke or comment by a housing provider or agent may be enough to constitute harassment.[86]

Threats by landlords or their agents to evict tenants can constitute unlawful harassment under the NYCHRL when motivated, in whole or in part, by the tenant’s actual or perceived immigration status and/or national origin. [87] In addition, using the specter of calling immigration authorities or the police to intimidate tenants from making complaints about unsafe housing conditions or otherwise unlawful conditions can be a violation of the NYCHRL. Such harassment includes appearing unannounced at a tenant’s apartment with individuals who appear to be law enforcement to intimidate tenants or threatening to make false accusations to law enforcement about unlawful activity. While reporting a violation of the law to the police is otherwise permitted, it is a violation of the NYCHRL when such action is taken or threats to take such action are made based solely on a discriminatory or retaliatory motive. If tenants have engaged in any protected activity, such reports to authorities may be actionable as retaliation.

A housing provider’s use of the terms “illegal alien” and “illegals,” with the intent to demean, humiliate, or offend also amounts to unlawful discrimination under the NYCHRL.

Examples of Disparate Treatment in Housing

A property management company has a policy of asking for a security deposit of six months’ rent from applicants whom the company perceives to not have U.S. citizenship compared to one month’s rent from applicants the company perceives to be U.S. citizens.

A landlord fails to make adequate repairs or provide equal services to undocumented tenants because the housing provider believes the tenants will not complain.

A broker refuses to help an Arabic-speaking individual find an apartment because he believes the individual is a temporary worker and is likely to leave the U.S.

An Indian immigrant family complains to their landlord about mold and cockroaches in their unit. The landlord tells them to “just deal with it” and threatens to call ICE if they file a complaint in housing court.

3. Public Accommodations

It is unlawful for places or providers of public accommodations,[88] their employees, or their agents to directly or indirectly deny any person, or communicate an intent to deny any person, the services, advantages, facilities, or privileges of a public accommodation, or to make their patronage feel unwelcome, because of their actual or perceived immigration status or national origin.[89] Any policy or practice not otherwise required by law that singles out individuals based on their immigration status or national origin is unlawful disparate treatment under the NYCHRL. Policies that categorically exclude or impose different conditions on individuals because of their immigration status, unless specifically required by law, are unlawful.[90]

Discriminating against patrons or customers of public accommodations because of their accent, limited English proficiency (“LEP”), or use of another language—such as making a patron or customer feel unwelcome, or turning them away from receiving services—is discrimination based on national origin under the NYCHRL.[91]

a. Language Access

Depending on the circumstances, a City agency’s failure to offer language interpretation services may constitute discrimination based on actual or perceived national origin where it amounts to a denial of meaningful access to direct public services or emergency services.[92] City agencies that provide direct public services or emergency services are required to develop and implement plans to provide language services in multiple languages and provide telephonic interpretation in at least 100 languages, as well as translate documents most commonly distributed to the public that contain or elicit important and necessary information.[93] Websites maintained by City agencies are also required to include a translation feature.[94] Failure to provide language access services as required by Local Law 30 may constitute a violation of the NYCHRL.[95]

Additional federal, state, and local requirements also exist to ensure that individuals have language access to services, some mandating certain places of public accommodation to provide translation or interpretation services. For example, the City distributes the Business Owner’s Bill of Rights that includes the right to access information in languages other than English and request language interpretation services for inspections.[96] Chain pharmacies must provide free, competent oral interpretation services to counsel individuals about their prescription medications or when soliciting information necessary to maintain a patient medication profile.[97] Providers of immigration services must give customers a written contract in a language understood by the customer, either alone or with the assistance of an interpreter, and, if that language is not English, an English language version of the contract must also be provided.[98] Hospitals must also provide language assistance for patients.[99] New York State court rules require interpreters to be provided to Limited English Proficiency (LEP) litigants in criminal and civil cases.[100] The City’s Department of Education also has a language access plan in place for students with LEP parents such that they are “given a meaningful opportunity to participate in their child’s education program.”[101] In addition, government contractors and subcontractors have obligations to provide language services. Under regulations implementing Title VI of the Civil Rights Act of 1964,[102] recipients of federal financial assistance—including government agencies and certain contractors and subcontractors—have a responsibility to ensure meaningful access to their programs and activities by LEP individuals.[103]

b. Inquiries About Immigration Status

Unnecessarily asking someone about their immigration status can cause a person to feel their “patronage [ ] is unwelcome, objectionable, [or] not acceptable,”[104] and can have a chilling effect on an individual’s access to services. For most covered entities, such as schools, libraries, gyms, stores, restaurants, and cultural institutions, an individual’s immigration status is irrelevant to the provision of services.[105] However, inquiries about immigration status may be relevant to the services offered by some providers, such as attorneys and providers of immigration-related services. In addition, federal law imposes eligibility limits on certain government programs that require providers to inquire about immigration status.[106] In these limited circumstances, it is recommended that providers of public accommodations explain that the inquiry is required by law.

c. Harassment

Harassment by providers of public accommodations motivated by an individual’s immigration status or national origin, or any other protected category, is unlawful. Such harassing conduct may include an incident or behavior that makes a patron feel unwelcome, or that fosters an atmosphere that is demeaning, humiliating, or offensive. Depending on the circumstances, a single comment may be enough to constitute harassment.[107] Harassment by providers of public accommodations may include a comment or joke and can occur in public accommodations such as schools, hospitals, or stores.

Threats by providers of public accommodations to call federal immigration authorities can constitute unlawful harassment under the NYCHRL when motivated, in whole or in part, by animus related to the patron’s actual or perceived immigration status and/or national origin. In addition, using the specter of calling immigration authorities or the police to intimidate patrons or make them feel unwelcome because of their actual or perceived immigration status and/or national origin is unlawful harassment under the NYCHRL. While reporting a violation of the law to the police is otherwise permitted, it is a violation of the NYCHRL when such action is taken or threats to take such action are made based solely on a discriminatory or retaliatory motive. If patrons have engaged in any protected activity, such reports to authorities may be actionable as retaliation.[108] Furthermore, the use of the terms “illegal alien” and “illegals,” with the intent to demean, humiliate, or offend a patron, amounts to unlawful discrimination under the NYCHRL.[109]

Examples of Disparate Treatment in Public Accommodations

A restaurant host tells a man who is perceived to be Chinese and his family that they must wait to be seated for a table. One hour passes and the family is still not seated, while the host has seated four English-speaking groups that arrived after the family and do not have reservations.

Classmates repeatedly bully a student who wears a yarmulke at school, telling her to “take that off, you’re in America now.” The student tells her teacher and the school administration that she is being bullied. The teacher and school administration, despite being aware of the conduct, have not taken the usual, mandatory measures to end the behavior.

At a rest stop, a bus driver of a coach bus company pulls aside two patrons that he perceives to be foreign based on their ethnicity and the language they are speaking. He says “I don’t think you should reboard the bus, and if you try, I am going to call the feds since I know you are ‘illegals.’”

A store owner tells two friends who are speaking Portuguese while shopping in his store to “speak English” and “go back to your country.”

4. Actions Based on Stereotypes or Assumptions

It is unlawful under the NYCHRL for covered entities in employment, housing, and public accommodations to take an adverse action against an individual or treat an individual less well than another due to stereotypes or assumptions related to immigration status or national origin rather than individual ability or circumstance. Judgments and stereotypes about employees, tenants, or patrons based on their actual or perceived immigration status or national origin, including assumptions about their education, beliefs, or behavior, are pervasive in our society and cannot be used as pretext for unlawful discriminatory treatment or decisions. Such treatment may also contribute to a hostile work environment under the NYCHRL.[110]

Examples of actions based on stereotypes or assumptions

An employer screens a highly qualified applicant for a new position. Upon hearing the applicant’s accent, the employer decides not to hire them, assuming that their accent indicates that the applicant is not very smart.

A landlord is renting an apartment to a prospective tenant who will be arriving from Australia with his family. The landlord is concerned about potential damage to the apartment and the inability to hold someone accountable if they move back to their country, so requires a larger security deposit from the tenant compared to other renters who are not immigrants.

Hotel staff voluntarily call federal immigration authorities to report the Spanish-sounding names of the guests staying at the hotel because they believe there are too many undocumented immigrants in the U.S.

B. Neutral Policies That Have a Disparate Impact Based on Immigration Status and National Origin

The NYCHRL explicitly creates a disparate impact cause of action, applying to claims of discrimination in employment, housing, public accommodations, and bias-based profiling by law enforcement.[111] Disparate impact claims involve policies or practices that appear to be neutral, but disproportionately impact one group more than others. Such policies or practices are unlawful under the NYCHRL unless they bear a significant relationship to a significant business objective of the covered entity.[112] Therefore, under a disparate impact theory of discrimination, a facially neutral policy or practice may be found to be unlawful discrimination even without evidence of the covered entity’s subjective intent to discriminate.[113] An example would be requiring every potential tenant to show a U.S. passport to get keys. In contrast, a policy that allows for the possibility that a potential tenant can use alternative identifying documentation would likely not run afoul of the NYCHRL.

The standard for establishing a prima facie case of disparate impact under the NYCHRL is lower than the standard for analogous claims under federal laws such as Title VII or the New York State Human Rights Law.[114] Under the NYCHRL, a complainant must show that a facially neutral policy or practice has a disparate impact on a protected group.[115] Once such a showing has been made, the covered entity has an opportunity to plead and prove as an affirmative defense that either: (1) the complained-of policy or practice bears a significant relationship to a significant business objective; or (2) the policy or practice does not contribute to the disparate impact.[116] However, this defense is overcome if the complainant produces substantial evidence of an available alternative policy or practice with less disparate impact, and the covered entity is unable to establish that an alternative policy or practice would not serve its business objective as well as the complained-of policy or practice.[117] In the employment context, a “significant business objective” includes, but is not limited to, successful performance of the job.[118]

Covered entities should modify policies and practices that may have a disparate impact on individuals due to their immigration status or national origin when there are appropriate alternatives.

Examples of Neutral Policies with Disparate Impact

Employment. An employer’s policy states that the only acceptable identification document all employees must provide for purposes of employment is a passport.

Housing. A landlord requires all tenants to show a U.S. passport in order to pick up keys for access to their newly rented apartment.

Public Accommodations. A service provider has a policy requiring all clients to provide their Social Security numbers as the only acceptable identifying information for receipt of services.

C. Discriminatory Harassment

The NYCHRL prohibits discriminatory harassment or violence motivated in whole or in part by an individual’s actual or perceived immigration status or national origin.[119] Discriminatory harassment occurs when someone uses force or threatens to use force against a victim, or when someone damages or destroys another individual’s property, because of the victim’s actual or perceived immigration status, national origin or other protected categories. This form of discrimination does not require a special relationship, such as employer-employee, landlord-tenant, or between a provider of public accommodation and a customer.

Examples of Discriminatory Harassment

A family of mixed immigration status lives in an apartment unit. The new tenants next door to them repeatedly bang on their door and wave a baseball bat at them while screaming discriminatory comments about their culture and threatening to call ICE.

An immigrant shop owner asks a couple of customers to leave his store after they start breaking merchandise. The customers tell the owner he should “go back to where he came from,” and exit the shop. The next morning, the owner discovers that the windows have been smashed and the walls spray-painted with anti-immigrant obscenities.

D. Bias-Based Profiling by Law Enforcement

City law prohibits bias-based profiling by law enforcement.[120] This occurs when a law enforcement agent takes a law enforcement action against someone because of an individual’s actual or perceived immigration status or national origin (or other protected status) rather than a person’s behavior or other information or circumstances that would link an individual to suspected unlawful activity.[121] For example, profiling drivers for traffic stops because they appear to be Middle Eastern or from Central America may violate this law. A bias-based profiling complaint may be filed with the Commission or in court pursuant to the NYCHRL.[122]

E. Retaliation

The NYCHRL prohibits retaliation for opposing discrimination. The purpose of the retaliation provision is to enable individuals to speak out against discrimination and to freely exercise their rights under the NYCHRL. Retaliating against an individual based on actual or perceived immigration status or national origin because they opposed discrimination is a violation of the NYCHRL.[123]

A covered entity may not retaliate against an individual because they engaged in protected activity, including: (1) opposing a discriminatory practice prohibited by the NYCHRL;[124] (2) raising an internal complaint regarding a practice prohibited under the NYCHRL; (3) making a charge or filing a complaint with the Commission or any other enforcement agency; (4) testifying, assisting, or participating in an investigation, proceeding, or hearing related to an unlawful practice under NYCHRL; or (5) providing any information to the commission pursuant to the terms of a conciliation agreement.[125] In order to establish a prima facie claim for retaliation, an individual must show that: (1) the individual engaged in a protected activity; (2) the covered entity was aware of the activity; (3) the individual suffered an adverse action; and (4) there was a causal connection between the protected activity and the adverse action.[126] When an individual opposes what they believe in good faith to be unlawful discrimination, it is illegal to retaliate against the individual, even if the underlying conduct they opposed is not ultimately determined to violate the NYCHRL.

An action taken against an individual that is reasonably likely to deter them from engaging in such activities is considered unlawful retaliation. The action need not rise to the level of a final action or a materially adverse change to the terms and conditions of employment, housing, or participation in a program to be retaliatory under the NYCHRL.[127] The action could be as severe as termination, demotion, removal of job responsibilities, or eviction, but could also include relocating an employee to a less desirable part of the workspace, shifting an employee’s schedule, or failing to make repairs in a resident’s unit.

Examples of Retaliation

A tenant who lives with several undocumented family members files a complaint with the Commission against his landlord based on a violation of the NYCHRL. The landlord sends a copy of his written response to ICE, identifying the immigration status of the tenant’s family members, in an effort to intimidate the complainant.

An employer has not paid a worker his full wages in two months. When the worker asks for his earned wages, his employer responds that due to slow business, he has to cut costs somewhere. When the employee objects, the employer tells the employee, “No one will listen if you complain, since you don’t have status, and if you do complain, I’ll call ICE.”[128]

A real estate agency fires an employee for reporting to the Commission that a large landlord with whom the agency closely works refused to rent to the agent’s client because the client is a recent immigrant.

F. Associational Discrimination

The NYCHRL’s anti-discrimination protections extend to prohibit unlawful discriminatory practices based on a person’s relationship to or association with an individual who actually has or is perceived to have a particular immigration status, or because of their actual or perceived national origin.[129] The law does not require a familial relationship for a person to be protected by the association provision; the relevant inquiry is whether the covered entity was motivated by the individual’s association with an individual who has a particular immigration status or national origin.

To establish a disparate treatment claim of associational discrimination under the NYCHRL, a complainant must show that: (1) the covered entity knew of the individual’s relationship or association with someone with an actual or perceived immigration status or national origin; (2) the individual suffered an independent injury, separate from any injury to the person with protected status; and (3) the covered entity treated the associate or relative less well, at least in part because of discriminatory animus.[130] A covered entity may not take adverse action based on the immigration status or national origin of a family member or anyone else with whom the applicant, employee, or customer has a relationship or association.

Examples of Associational Disparate Treatment Claims

• An employer refuses to pay for health benefits for an employee’s spouse, where health benefits are typically available to all employees’ spouses, because the spouse is not a U.S. citizen.

• A landlord refuses to rent out her apartment to a U.S. citizen who she believes will live with undocumented family members.

IV. Interaction Between the NYCHRL and Federal and State Law

While the NYCHRL protects individuals on the basis of actual or perceived immigration status, the NYCHRL explicitly recognizes that federal and state law may expressly permit discrimination on the grounds of immigration or citizenship status in certain contexts.[131] The NYCHRL states:

Notwithstanding any other provision of this section, it shall not be an unlawful discriminatory practice for any person to discriminate on the ground of immigration or citizenship status, or to make any inquiry as to a person’s immigration or citizenship status, or to give preference to a person who is a citizen or a national of the United States over an equally qualified person who is not a citizen or national of the United States, when such discrimination is required or when such preference is expressly permitted by any law or regulation of the United States, the state of New York or the city of New York, and when such law or regulation does not provide that state or local law may be more protective of a person who is not a citizen or national of the United States; provided, however, that this provision shall not prohibit inquiries or determinations based on immigration or citizenship status when such actions are necessary to obtain the benefits of a federal program. An applicant for a license or permit issued by the city of New York may be required to be authorized to work in the United States whenever by law or regulation there is a limit on the number of such licenses or permits which may be issued.[132]

(Emphasis added.)

Establishing laws regulating immigration is exclusively in the province of the Federal Government.[133] This includes the determination of an individual’s immigration status; the issuance of visas, employment authorization documents, and green cards; and employers’ restrictions on hiring. IRCA specifically prohibits employers from knowingly hiring immigrants without work authorization and requires that employers attest to their employees’ immigration status. Federal law also governs the issuance of employment authorization documents, which are required for persons who are not citizens or lawful permanent residents.[134] Under the NYCHRL, therefore, it is not unlawful to deny employment to an individual who is not authorized to work in the United States.[135] But if the employer asks whether an applicant has work authorization, the employer must ask all applicants regardless of actual or perceived race, national origin, religion, or another protected category. Once in the workplace, employees have protections and remedies available to them under the NYCHRL regardless of their immigration status, work authorization, or whether they are paid on or off the books.

*********

The Commission is dedicated to eradicating discrimination on the basis of immigration status and national origin in New York City. If you believe you have been subjected to unlawful discrimination on the basis of your immigration status, national origin, or membership in another protected class, please contact the Commission at 311 or at (212) 416-0197 to submit an inquiry regarding discrimination and scheduling an intake appointment with the Commission’s Law Enforcement Bureau.

Endnotes

[1] This document serves as the Commission’s legal enforcement guidance on the NYCHRL’s protections against discrimination based on actual or perceived immigration status and actual or perceived national origin. This document is not intended to serve as an exhaustive description of all forms of immigration status-related or national origin-related discrimination claims under the NYCHRL and is not legal advice.

[2] Report on New York City’s Immigrant Population and Initiatives of the Office, N.Y.C. Mayor’s Office of Immigrant Affairs (2022), https://www.nyc.gov/assets/immigrants/downloads/pdf/MOIA_WeLoveImmigrantNYC_AR_2023_final.pdf.

[3] See id.

[4] State of Our Immigrant City: MOIA Annual Report for Calendar Year 2020, N.Y.C. Mayor’s Office of Immigrant Affairs, https://www.nyc.gov/assets/immigrants/downloads/pdf/MOIA-Annual-Report-for-2020.pdf.

[5] See NYC Department of Planning, https://www.nyc.gov/site/planning/about/language-access.page (last accessed Aug. 9, 2024).

[6] See Local Law 58 of 2020, amending N.Y.C. Admin Code §§ 8-101 et seq. In 2022, New York State laws were amended by removing the terms “alien” and “illegal alien” and adding “noncitizen” and "undocumented noncitizen" as appropriate nomenclature. See Chapter 669 of the Laws of 2022.

[7] The NYCHRL prohibits unlawful discriminatory practices by employers, labor organizations, employment agencies, joint labor-management committee controlling apprentice training programs, or any employee or agent thereof. N.Y.C. Admin. Code § 8-107(1). Under the NYCHRL, “employer” refers to an employer with four or more persons in their employ “at all times during the period beginning twelve months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice.” Independent contractors working in furtherance of a business enterprise, and an employer’s spouse, domestic partner, parent, or child are included. Furthermore, in 2022, the NYCHRL was amended to include employers with one or more domestic workers as covered employers. Id. § 8-107(23). Gender-based harassment prohibitions apply in all workplaces regardless of the number of employees. Id. § 8-102. In addition, the New York State Human Rights Law, which prohibits discrimination in employment on the basis of national origin, citizenship, or immigration status, applies to all employers, regardless of size. N.Y. Exec. Law §§ 292; 296. See Chapter 748 of the Laws of 2022 (amending the NYS Human Rights to add citizenship and immigration status as protected categories).

[8] Housing provisions apply to the “owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to be constructed, or an interest therein, or any agent or employee thereof.” N.Y.C. Admin. Code § 8-107(5). Real estate brokers, real estate salespersons, or employees or agents thereof are also covered. Id. Most housing is covered. Id. § 8-102. There are limited exceptions for owned occupied housing that are two units or less, and that are not advertised.
Id. § 8-107(5)(4).

[9] The NYCHRL prohibits unlawful discriminatory practices in public accommodations which refers to businesses and organizations, as well as entities including any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation. N.Y.C. Admin. Code § 8-107(4). The NYCHRL defines the term “place or provider of public accommodation” to include places where goods, services, facilities, or accommodations are offered, sold or made available, and providers of goods, services, facilities, or accommodations. The following are not considered public accommodations: (1) a club “which proves that it is in its nature distinctly private”; (2) “a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state”; (3) “a religious corporation incorporated under the education law or the religious corporation law [which] is deemed to be in its nature distinctly private.”

Id. § 8-102.

[10] N.Y.C. Admin. Code §§ 8-602–603.

[11] Id. § 14-151.

[12] Local Law 85 § 1 (2005); N.Y.C. Admin. Code § 8-130(a) (“The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York state civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.”).

[13] Local Law 35 (2016); N.Y.C. Admin. Code § 8-130(b).

[14] N.Y.C. Admin. Code § 8-109(e).

[15] Id. § 8-402.

[16] See N.Y.C. Mayoral Executive Orders 34 and 41 of 2003, https://www1.nyc.gov/site/immigrants/about/local-laws-executive-orders.page. Executive Order 34, as amended by Executive Order 41, prohibits City officers or employees (other than law enforcement officers, who are subject to separate restrictions) from inquiring about a person’s immigration status unless: “(1) Such person’s immigration status is necessary for the determination of program, service or benefit eligibility or the provision of City services; or (2) Such officer or employee is required by law to inquire about such person’s immigration status.” Executive Order 41 prohibits law enforcement officers from inquiring about a person’s immigration status unless investigating illegal activity other than mere status as an undocumented immigrant. Executive Order 41 also prohibits City officers from disclosing another person’s immigration status unless the disclosure is required by law or permitted by other provisions of the Order; see also Local Laws 245, 247 (2017); N.Y.C. Charter § 8(h); N.Y.C. Admin. Code § 23-1201 et seq.; 47 R.C.N.Y. § 1-65(d) (“Materials related to immigration status are not subject to disclosure or discovery absent an order to compel issued by the Chair. A party seeking production of such materials may move the Administrative Law Judge for a recommendation to the Chair for an order to compel. When deciding a motion for an order to compel the production of such materials, the Chair must consider the following factors: whether the materials are relevant and necessary to a claim or defense, and whether production of the materials will subject a party to annoyance, embarrassment, oppression, undue burden, or prejudice (including in terrorem effect). Notwithstanding the foregoing, an individual may voluntarily produce or authorize the production of information about the individual's own immigration status.”).

[17] NYC Admin. Code § 8-109(c).

[18] N.Y.C. Admin. Code § 8-102.

[19] Local Law 58 (2020) (removing the term “alienage or citizenship status” from the NYCHRL and replacing it with “immigration or citizenship status,” among similar amendments in other areas of local law). Notably, in April 2021 the federal government ordered U.S. immigration enforcement agencies to use “undocumented noncitizen” instead of “illegal alien.” Joel Rose, Immigration Agencies Ordered Not to Use Term ‘Illegal Alien’ Under New Biden Policy, NPR (Apr. 19, 2021), https://www.npr.org/2021/04/19/988789487/immigration-agencies-ordered-not-to-use-term-illegal-alien-under-new-biden-policy.

[20] See Stephen Hiltner, Illegal, Undocumented, Unauthorized: The Terms of Immigration Reporting, N.Y. Times (Mar. 10, 2017), https://www.nytimes.com/2017/03/10/insider/illegal-undocumented-unauthorized-the-terms-of-immigration-reporting.html (“alien” and “illegal” are “off the table entirely” in the New York Times style guide). The Commission avoids the use of the term “alien” wherever possible to describe an individual or a community despite the fact that related terms appear in many relevant state and federal laws. See, e.g., 8 U.S.C. § 1324b et seq.; N.Y. Const. art. III, § 5. The Commission recognizes that federal, state, and local laws often contain the word “alien” to describe a “noncitizen” person. Where covered entities are required to complete certain forms that contain a reference to “alien” pursuant to federal, state, or local law, such use is an example of usage that does not amount to unlawful discrimination in violation of the NYCHRL.

[21] Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 Fordham L. Rev. 1545, 1569 (2011); see also supra note 19; see generally D. Carolina Núñez, War of the Words: Aliens, Immigrants, Citizens, and the Language of Exclusion, 2013 B.Y.U. L. Rev. 1517 (2013); Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. Rev. 1425 (1994); Kevin R. Johnson, “Aliens” and the US Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. Miami Inter-Am. L. Rev. 263 (1996).

[22] The use of the term “illegal” is unacceptable for many reasons, including that it purports to assign guilt to a person before a fair trial. See Arizona v. United States, 567 U.S. 387 (2012) (Supreme Court omitting the terms “illegal immigrants” and “illegal aliens” all together, except when quoting other sources, in a decision on immigration); Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (using the term “undocumented immigrant” in a United States Supreme Court opinion); Derek Hawkins, The long struggle over what to call ‘undocumented immigrants’ or, as Trump said in his order, ‘illegal aliens’, Wash. Post (Feb. 9, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/02/09/when-trump-says-illegals-immigrant-advocates-recoil-he-would-have-been-all-right-in-1970/(discussing Carpenter, Arizona, and Justice Sotomayor’s statements that use of the term “illegal alien” creates the perception “that immigrants are all criminals and criminals in a negative sense of drug addicts, thieves, and murderers.”); Beth Lyon, When More “Security” Equals Less Workplace Safety: Reconsidering U.S. Laws that Disadvantage Unauthorized Workers, 6 U. Pa. J. Lab. & Emp. L. 571, 576, 2004 (referring to such people as “illegal aliens” is equivalent to referring to defendants awaiting trial as “convicted criminals”). In addition, international human rights law mandates that States respect immigrants’ human rights and refrain from criminalizing migrants who enter the State irregularly. See International Justice Resource Center, Ten Human Rights Standards Implicated by U.S. Immigration Policy, https://ijrcenter.org/2018/06/27/ten-human-rights-standards-implicated-by-u-s-immigration-policy/; Inter-American Commission on Human Rights Press Release, IACHR Expresses Concern over Recent Migration and Asylum Policies and Measures in the United States, I.A.C.H.R. Press Release 130 (June 18, 2018).

[23] Saint Francis College v. Al–Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring).

[24] See Payne v. N.Y.C. Police Dep’t, 863 F. Supp. 2d 169, 182 n.8 (E.D.N.Y. 2012) (quoting Millin v. McClier Corp., 02–CV–6592, 2005 WL 351100, at *5 (S.D.N.Y. Feb. 14, 2005) (“race, religion, and national origin are commonly associated with one another, it is difficult, and unnecessary, to consider whether the various allegedly discriminatory incidents . . . clearly point to either race-, religion-, or national-origin-based discrimination.”).

[25] Marta B. Varela, The First Forty Years of the Commission on Human Rights, Fordham Urban L. J., 984–85 (1995) (citing N.Y.C. Local Law 97 (1965)).

[26] Bill Jacket, Local Law 52 (1989); 8 U.S.C. §§1160, 1187, 1188, 1255a, 1324a, 1324b, 1364, 1365. IRCA introduced Form I-9 and established financial and other penalties for those employing immigrants without work authorization.

[27] 8 U.S.C. §§ 1160, 1255a.

[28] Mayor Koch Testimony, Local Law 52 (1989), available upon request from the Commission.

[29] Id.

[30] Codified in N.Y.C. Admin. Code §§ 8-102, 8-107. The protected category was also included with the later additions of bias-based profiling and discriminatory harassment. See N.Y.C. Admin. Code §§ 8‑602–603, 14-151.

[31] Richard Levine, Koch Favors Measure to Protect Illegal Aliens, N.Y. Times (Dec. 22, 1988), https://www.nytimes.com/1988/12/22/nyregion/koch-favors-measure-to-protect-illegal-aliens.html.

[32] Local Law 58 (2020), codified in N.Y.C. Admin. Code §§ 8-102, 8-107, 8-602, 8-603, 14-151.

[33] See Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003).

[34] See Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27 (1st Dep’t 2009); N.Y.C Admin. Code § 8‑107. The NYCHRL also protects individuals based on actual or perceived immigration status in several other contexts such as licensing, real estate, credit, discriminatory harassment, and bias-based profiling. See N.Y.C. Admin. Code §§ 8‑107(9), 8-107(5), 8-107(24), 8-603, 14-151.

[35] In the employment context, proficiency in English may be necessary to requirements of the job. In such instances, an employer must establish that English proficiency is necessary to the job to argue that no discriminatory animus motivated a decision to reject an applicant or to take an adverse action against an employee. See Mejia v. N.Y. Sheraton Hotel, 459 F. Supp. 375, 377 (S.D.N.Y. 1978).

[36] Williams, 872 N.Y.S.2d at 39.

[37] See In re Comm’n on Human Rights ex rel. Stamm v. E&E Bagels, OATH Index No. 803/14, Comm’n Dec. & Order, 2016 WL 1644879, at *4 (Apr. 21, 2016). Examples of direct evidence could include explicit statements by a covered entity that an adverse action was based on a protected status, or explicitly discriminatory policies. See id. A plaintiff may prevail in an action under the NYCHRL if “he or she proves that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision, or that the action was ‘more likely than not based in whole or in part on discrimination.” Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 127 (1st Dep’t 2012) (quoting Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009)). If plaintiff makes this prima facie showing, then the burden shifts to the employer to rebut the presumption of discrimination by demonstrating that there was a legitimate and non-discriminatory reason for its employment decision. If the employer articulates a legitimate, non-discriminatory basis for its decision, then the burden shifts back to the plaintiff “to prove that the legitimate reasons proffered by defendant were merely a pretext for discrimination.” Ferrante v. Am. Lung Ass’n, 90 N.Y.2d 623, 629–30 (1997). See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Fields v. Dep’t of Educ. of the City of New York, No. 154283/2016, 2019 WL 1580151 (Sup. Ct. N.Y. Cty. Apr. 12, 2019).

[38] N.Y.C. Admin. Code § 8-107(1).

[39] Id. § 8-107(14).

[40] Id.

[41] See 8 U.S.C. § 1324a et seq.

[42] Id. § 1324b(a)(4).

[43] See U.S. Citizenship & Immigration Servs., Preventing Discrimination (March 8, 2023), https://www.uscis.gov/i-9-central/employee-rights-resources/preventing-discrimination.

[44] Employers should also be aware of nondiscrimination requirements under federal law. The U.S. Department of Justice has published guidance for employers with respect to the process for having employees complete the mandatory I-9 form to verify their employment authorization. The guidance states that the authorization process does not require an employee to prove their citizenship status to the employer, and that “[a]sking an employee for proof of citizenship or immigration status could be unlawful.” See U.S. Dep’t of Justice, Immigrant & Employee Rights Section, How Employers Can Avoid Discrimination in the Form I-9 and E-Verify Process, https://www.justice.gov/crt/page/file/1132606.

[45] N.Y.C. Admin. Code § 8-107(1).

[46] U.S. Citizenship & Immigration Servs., I-9, Employment Eligibility Verification, https://www.uscis.gov/i-9. An individual does not need to complete an I-9 if: they are an independent contractor; employed for casual domestic work in a private home on an irregular or intermittent basis; not physically working on U.S. soil; or if they are providing labor and are employed by a contractor providing contract services (e.g., employee leasing or temporary agencies). Empl’t Law Inst., Handbook For Employers U.S. Citizenship And Immigration Services, 20160311a NYCBAR 264, 2016 WL 1643131, at 4 (N.Y.C. Bar Ass’n 2016).

[47] 8 U.S.C. § 1324a. “It is an ‘unfair immigration-related employment practice’ under 8 U.S.C. § 1324b(a)(6) for (i) A person or other entity, for purposes of satisfying the requirements of 8 U.S.C. § 1324a(b), either– (A) To request more or different documents than are required under § 1324a(b); or(B) To refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual; and (ii) To make such request or refusal for the purpose or with the intent of discriminating against any individual….” 28 C.F.R. § 44.200(a)(3).

[48] See Empl’t Law Inst., Handbook For Employers U.S. Citizenship And Immigration Services, 20160311a NYCBAR 264, 2016 WL 1643131, at 5 (N.Y.C. Bar Ass’n 2016). In the work authorization process, employees are required to provide proof of both their identity and their employment authorization. The instructions for completing I-9 forms have three lists of documents. An employee may provide a document from List A to establish both their identity and their employment authorization. Alternatively, an employee may provide a document from List B to establish their identity and a document from List C to establish their employment authorization. See U.S. Citizenship & Immigration Services, Acceptable Documents (April 17, 2024), https://www.uscis.gov/i-9-central/acceptable-documents.

[49] These actions may also violate federal anti-discrimination law. See, e.g., U.S. Citizenship & Immigration Servs., Employee Rights (Feb. 23, 2023), https://www.uscis.gov/i-9-central/employee-rights-and-resources/employee-rights; U.S. Citizenship & Immigration Servs., Handbook for Employers M-274, 11.4 Avoiding Discrimination in Recruiting, Hiring, and the Form I-9 Process (July 18, 2023), https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/110-unlawful-discrimination-and-penalties-for-prohibited-practices/114-avoiding-discrimination-in-recruiting-hiring-and-the-form-i-9-process (last accessed Aug. 8, 2024); U.S. Citizenship & Immigration Servs., Preventing Discrimination, https://www.uscis.gov/i-9-central/employee-rights-and-resources/preventing-discrimination last accessed Aug. 8, 2024).

[50] See U.S. Citizenship & Immigration Servs., Preventing Discrimination, https://www.uscis.gov/i-9-central/employee-rights-and-resources/preventing-discrimination (last accessed Aug. 8, 2024).

[51] 8 C.F.R. § 274a.2(b)(1); U.S. Citizenship & Immigration Servs., Completing Section 3, Reverification and Rehires (August 7, 2023), https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-section-3-reverification-and-rehires.

[52] U.S. Citizenship and Immigration Services defines constructive knowledge as “knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” See 8 C.F.R. § 274a(1)(l)(1). This regulation also offers these examples:

Constructive knowledge may include, but is not limited to, situations where an employer:

(i) Fails to complete or improperly completes the Employment Eligibility Verification Form I-9;

(ii) Has information available to it that would indicate that the alien is not authorized to work,

such as Labor Certification and/or an Application for Prospective Employer; or

(iii) Acts with reckless and wanton disregard for the legal consequences of permitting another

individual to introduce an unauthorized alien into its work force or to act on its behalf.

[53] See Collins Foods Int’l, Inc. v. U.S. I.N.S., 948 F.2d 549, 554 (9th Cir. 1991) (noting employment offer before verification of work-authorized status does not constitute constructive knowledge); Mester Mfg. Co. v. U.S. I.N.S., 879 F.2d 561, 566–67 (9th Cir. 1989) (noting knowledge element satisfied where employer failed to investigate after a U.S. Immigration and Naturalization Service (“INS”) agent advised the employer of specific employees that INS suspected of using false alien registration cards); Trollinger v. Tyson Foods, Inc., 543 F. Supp. 2d 842, 848, 853 (E.D. Tenn. 2008) (noting non-English application does not raise reasonable suspicion to constitute knowledge of non-work-authorized status). INS was a federal agency that was eliminated in 2003. Its duties were transferred to U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection.

[54] Employers may conduct self-audits of their compliance with work authorization requirements by selecting records to be audited based on neutral and non-discriminatory criteria. U.S. Immigration and Customs Enforcement has published guidance to help employers structure and implement internal audits in a manner consistent with the employer sanctions and anti-discrimination provisions of the INA. It explicitly states that audits should not be conducted on the “basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason.” U.S. Citizenship & Immigration Servs., Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits, https://www.justice.gov/crt/file/798276.

[55] Empl’t Law Inst., Handbook For Employers U.S. Citizenship And Immigration Services, 20160311a NYCBAR 264, 2016 WL 1643131, at 5 (N.Y.C. Bar Ass’n 2016); see also Immigration and Nationality Act § 274A, 8 U.S.C. § 1324a(b)(1)(B)–(D); 8 C.F.R. §§ 274a.1(l)(1)(ii), 274a.9(c); U.S. Citizenship & Immigration Servs., E-Verify, 2.1 Form I-9 and E-Verify (June 4,2024), https://www.e-verify.gov/e-verify-user-manual-20-initial-verification/21-form-i-9-and-e-verify.

[56] 48 C.F.R. § 22.1802 (E-verify requirements for certain federal contractors and subcontractors). E-Verify, the U.S. Citizenship and Immigration Service's employment eligibility verification program, is an Internet-based system that compares information from an employee’s Employment Eligibility Verification Form (I-9) to U.S. Department of Homeland Security and Social Security Administration records to confirm that that the employee is authorized to work in the United States. Employers may also conduct self-audits of their compliance with work authorization requirements by selecting records to be audited based on neutral and non-discriminatory criteria. U.S. Immigration and Customs Enforcement has published guidance to help employers structure and implement internal audits in a manner consistent with the employer sanctions and anti-discrimination provisions of the INA. It explicitly states that audits should not be conducted on the “basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason.” U.S. Citizenship & Immigration Servs., supra note 54.

[57] U.S. Citizenship & Immigration Servs., Continuing Employment (Aug. 26, 2020), https://www.uscis.gov/i-9-central/complete-correct-form-i-9/continuing-employment.

[58] See 8 C.F.R. § 274a.2 (“An employer will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times.”).

[59] U.S. Citizenship & Immigration Servs., Mergers and Acquisitions (Jan. 19, 2017), https://www.uscis.gov/i-9-central/mergers-and-acquisitions.

[60] Guidance from the U.S. Citizenship and Immigration Services states that employers should not reverify U.S. citizens and U.S. noncitizen nationals and should not reverify lawful permanent residents who have presented certain documents. For other individuals, the guidance states that employers should not reverify “List B documents” (documents that are used to establish a person’s identity during the work authorization verification process), but should reverify “List A” documents and “List C” documents (documents used to establish work authorization) when the employee’s employment authorization or employment authorization documentation expires. U.S. Citizenship & Immigration Servs., Completing Section 3, Reverification and Rehires (August 7, 2023), https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-section-3-reverification-and-rehires.

[61] See 8 U.S.C. § 1324b; N.Y.C. Admin. Code § 8-107(7). See infra Section III(E) for discussion on retaliation.

[62] See Aramark Facility Servs. v. Serv. Employees Int’l Union, Local 1877, AFL CIO, 530 F.3d 817, 825–27 (9th Cir. 2008). One example, highlighted in Aramark, is a prior practice of the Social Security Administration (“SSA”) where SSA issued “Employee Correction Request Notices” or “No Match Letters” to advise employers that the reported information about an employee’s name and/or Social Security number (“SSN”) did not match the name or SSN in the SSA’s records. A No-Match Letter was intended to inform employers that corrections were needed for purposes of Social Security benefits. It did not constitute proof that a named employee had an issue with their immigration status, and did not require adverse action. However, some employers used No-Match Letters as a basis for adverse action. N.Y.C. Comm’n on Human Rights and Mayor’s Office of Immigrant Affairs, Employers: What You Need to Know About Social Security Administration No-Match Letters, (Oct. 2019), https://www1.nyc.gov/site/cchr/media/No-Match-Letter-Factsheet.page; U.S. Dep’t of Justice, Frequently Asked Questions about Name/Social Security Number No-Matches, https://www.justice.gov/site/default/files/crt/legacy/2010/12/29/FAQs.pdf. Record-keeping discrepancies could happen for many reasons, including clerical errors and name changes. N.Y.C. Comm’n on Human Rights and Mayor’s Office of Immigrant Affairs, Employers: What You Need to Know About Social Security Administration No-Match Letters, https://home.nyc.gov/assets/cchr/downloads/pdf/materials/SSANoMatchLetter_Factsheet-7.5.19_EN.PDF (Oct. 2019). U.S. Dep’t of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices, Names and Social Security Numbers (SSNs) “No-Matches” Information for Employers, https://www.justice.gov/site/default/files/crt/legacy/2014/12/04/Employers.pdf (last accessed Aug. 13, 2024) (employers should not: “[a]ssume the no-match conveys information regarding the employee’s immigration status or actual work authority;” “[u]se the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee;” “[a]ttempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice;” “[f]ollow different procedures for different classes of employees based on national origin or citizenship status;” “[r]equire the employee to produce specific I-9 documents to address the no-match;” or “[r]equire the employee to provide a written report of SSA verification (as it may not always be obtainable).”).
It has been reported that the SSA ceased the use of “No Match Letters,” also referred to as “Employer Correction Request Notices,” in April 2021. See Soc. Sec. Admin., Employer Correction Request Notices (EDCOR), https://www.ssa.gov/employer/notices.html (last visited Aug. 13, 2024); Elvia Malagón, Immigration advocates say end of ‘no-match letters’ a victory for workers Chicago Sun Times (Apr. 22, 2021), https://chicago.suntimes.com/2021/4/22/22397663/chicago-immigration-no-match-letters-social-security-administration-victory-workers; Michael H. Neifach, No Match Letters Discontinued, National Law Review (May 6, 2021), https://www.natlawreview.com/article/no-match-letters-discontinued.

[63] ICE may physically visit an employer in a raid of the worksite in which ICE agents question and detain individual workers or groups of workers, or conduct a “silent raid” where ICE agents examine personnel files at an employer’s main office. See Julia Preston, Illegal Workers Swept from Jobs in Silent Raids, N.Y. Times (July 9, 2010), https://www.nytimes.com/2010/07/10/us/10enforce.html.

[64] In an I-9 audit, ICE will typically serve a “Notice of Inspection” upon an employer, which requires the employer to produce I-9 forms. U.S. Citizenship & Immigration Servs., Inspections, https://www.uscis.gov/i-9-central/retain-store-form-i-9/inspections; see U.S. Citizenship & Immigration Servs., Form I-9 Inspection Overview, (Feb. 2, 2022), https://www.ice.gov/factsheets/i9-inspection for more information.

[65] For more on retaliation, see infra Section III(E).

[66] In addition, New York Labor Law § 215(1)(a)(enacted by Chapter 126 of 2019) provides that “to threaten, penalize, or in any other manner discriminate or retaliate against any employee includes threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee's family or household member.”

[67] N.Y.C. Admin. Code § 8-107(1); see N.Y. Labor Law §§ 193, 663, 681; Formal Op. No. 2003-F3, Office of the Att’y Gen. of the State of N.Y., 2003 WL 22522840 (Oct. 21, 2003) (federal case law does not preclude the New York State Department of Labor from enforcing state wage payment laws on behalf of undocumented immigrants). There are additional worker protections against retaliation regardless of immigration status in New York City. See, e.g., N.Y.C. Admin. Code § 20-1204 (prohibiting retaliation against employees in relation to their rights under the Fair Work Week Law); 6 R.C.N.Y § 7‑104(b) (“Any person who meets the definition of employee in section 7-101 of this subchapter is entitled to the rights and protections provided by this subchapter to employees and any applicable provision of the [Office of Labor Policy and Standards] laws and rules, regardless of immigration status.”).

[68] Goffe v. NYU Hosp. Ctr., 201 F. Supp. 3d 337, 351 (E.D.N.Y. 2016) (“the federal severe or pervasive standard of liability no longer applies to NYCHRL claims, and the severity or pervasiveness of conduct is relevant only to the scope of damages…”); Williams, 872 N.Y.S.2d at 38.

[69] See Cardenas v. Automatic Meter Reading Corp., OATH Index No. 1240/13, Comm’n Dec. & Order, 2015 WL 7260567, at *8 (Oct. 28, 2015) aff’d sub nom. Automatic Meter Reading Corp. v. N.Y.C., 63 Misc. 3d 1211(A) (Sup. Ct. N.Y. Cty. 2019) (citing Williams, 872 N.Y.S.2d at 41 n.30).

[70] N.Y.C. Admin. Code § 8-107(13)(b)(1).

[71] Id. § 8-107(13)(b)(2).

[72] Id. § 8-107(13)(b)(3).

[73] See United States v. Rivera, 799 F.3d 180, 187 (2d Cir. 2015) (“[v]ictims testified that Appellants threatened that they would report the victims to the immigration authorities and that they were threatened with or subjected to physical violence if they did not comply with Appellants' instructions.”). In discussing labor trafficking, “known objective conditions that make the victim especially vulnerable to pressure (such as youth or immigration status) bear on whether the employee's labor was obtained by forbidden means.” Muchira v. Al-Rawaf, 850 F.3d 605, 618 (4th Cir.), amended (Mar. 3, 2017), cert. denied, 138 S.Ct. 448, 199 L. Ed. 2d 329 (2017) (internal quotation marks and alteration omitted).

[74] See Comm’n on Human Rights and Ondaan v, Lysius, OATH Index No. 2801/18, Comm’n Dec. & Order, 2020 WL 7212457, at * 11-12 (Nov. 24, 2020) aff’d sub nom. Dianna Lysius v. N.Y.C. Comm’n on Human Rights, 706969/2021 NYSCEF (Sup. Ct. Queens Cty. 2021) appeal denied In the Matter of Dianna Lysius v. N.Y.C. Comm’n on Human Rights, et al., 2022 WL 14772712 (N.Y.A.D. 2 Dept, 2022) (holding that landlord violated the NYC Human Rights Law via repeated threats to a tenant that the landlord would contact federal immigration authorities about a tenant along with using discriminatory language based on the tenant’s perceived immigration status).

[75] Id.; U.S. Equal Emp’t Opportunity Comm’n, Fact Sheet: Retaliation Based on Exercise of Workplace Rights is Unlawful (December 10, 2015), https://www.eeoc.gov/fact-sheet-retaliation-based-exercise-workplace-rights-unlawful.

[76] N.Y.C. Admin. Code § 8-107(5)(a)(1).

[77] Id. § 8-107(5).

[78] See National Immigration Law Center, Rental Housing Programs (last updated Oct. 2018), https://www.nilc.org/wp-content/uploads/2016/03/rental_housing_1005.pdf; see also N.Y.C. Admin. Code § 8-107(14).

[79] Requesting unnecessary additional documentation, like a driver’s license, may also be a proxy for discriminating based on other protected categories such as race, disability, and age.

[80] See N.Y. Gen. Oblig. Law § 7-107 et seq.

[81] See id.

[82] For example, some online programs partner with landlords to provide deposit-free listings and listings that are explicitly open to international citizens and students.

[83] See N.Y.C. Admin. Code § 8-107(5)(d).

[84] In general, once a tenant is in housing for thirty days or more, any eviction requires proper service of notice and a court order. Id. § 26-521(a). However, if an eviction is motivated in whole or in part by discrimination based on a protected category—such as immigration status or national origin—the landlord would be in violation of the NYCHRL regardless of the length of the tenant’s occupancy.

[85] See State of N.Y. Office of the Attorney General, Immigrant Tenant Rights, https://ag.ny.gov/site/default/files/immigration_tenants_rights_web.pdf; see N.Y. REAL PROP. LAW § 232-a-b.

[86] See Cardenas, 2015 WL 7260567, at *8 (citing Williams, 872 N.Y.S.2d at 41 n.30).

[87] See Ondaan, 2020 WL 7212457(it is unlawful under the New York City Human Rights Law for a landlord call a tenant an “illegal” immigrant and threatened to report the tenant to federal immigration authorities as a means to attempt to collect rental arrears).

[88] See N.Y.C. Admin. Code § 8-102 for the NYCHRL definition of place or provider of public accommodation. Examples of public accommodations include owners and operators of restaurants, parks, cinemas, theaters, libraries, hospitals, supermarkets, department stores, and their employees and agents.

[89] Id. § 8-107(4).

[90] However, it is not a violation for public accommodations to conduct activities and host events which are intended to celebrate and preserve the language and culture associated with a particular national origin. Providers of public accommodations cannot exclude individuals from such activities because they do not, or are perceived to not, belong to a particular protected category.

[91] See N.Y.C. Admin. Code § 8-107(4); Boureima v. N.Y.C. Human Res. Admin., 128 A.D.3d 532 (1st Dep’t 2015) (citing Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1116–17 (9th Cir. 2009)) (finding that discrimination against limited English proficient individuals was discrimination based on national origin in violation of NYCHRL when provider of public accommodation failed to provide language access services).

[92] See generally Boureima, 128 A.D.3d 532; N.Y.C. Admin. Code § 8-107(4)(a)(1)(a) (it is an unlawful discriminatory practice for a provider of public accommodation to “withhold from or deny. . . the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation.”). Federal agencies similarly interpret Title VI's prohibition on national origin discrimination to require federal funding recipients to provide translation services to ensure that Limited English Proficient (“LEP”) individuals have meaningful access to federal programs. See, e.g., U.S. Dep’t of Health, Education, and Welfare, Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed. Reg. 11,595 (July 18, 1970); Exec. Order No. 13,166, Improving Access for Persons with Limited English Proficiency, 65 Fed. Reg. 50,121 (Aug. 11, 2000); U.S. Dep’t of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18, 2002)..

[93] N.Y.C. Admin. Code § 23-1101 et seq., added by Local Law 30 (2017) and amended by Local Law 13 (2023). An earlier law, added by Local Law 73 (2003), requires social service agencies to provide language services. N.Y.C. Admin. Code § 21-190. There are also language translation requirements for the City’s emergency notification system. Id. § 30-115.

[94] N.Y.C. Admin. Code § 23-810. The translation feature must be indicated by a means, other than or in addition to English, that is comprehensible to speakers of the seven most commonly spoken languages within the City.

[95] See id. § 8-107; accord Boureima, 128 A.D.3d 532 (basis for the court’s decision was denial of services by HRA).

[96] N.Y.C. Charter § 15(f).

[97] N.Y.C. Admin. Code § 20-621.

[98] Id. § 20-777.

[99] N.Y. PUB. HEALTH LAW § 2807-k(9-a)(c) (requiring financial assistance forms to be printed in any language that is either (i) used to communicate, during at least 5% of patient visits in a year, by patients who cannot speak, read, write or understand the English language at the level of proficiency necessary for effective communication with health care providers, or (ii) spoken by non-English speaking individuals comprising more than 1% of the primary hospital service area population); 10 N.Y.C.R.R. § 405.7 (requiring hospitals to develop a language assistance program to ensure meaningful access to the hospital's services and a reasonable accommodation for all patients who require language assistance).

[100] N.Y. Comp. Codes R. & Regs. tit. 22, §§ 217.1, 217.2.

[101] N.Y.C. Dep’t of Educ., Language Access Policy, https://www.schools.nyc.gov/school-life/policies-for-all/language-access-policy (last accessed Aug. 9, 2024); Chancellor Regulation A-663 (June 26, 2007) (requiring that the City’s Department of Education (“DOE”) provide interpretation services, either at the school/office where the parent is seeking assistance or by telephone, to the maximum extent practicable, during regular business hours to parents whose primary language is a covered language and who request such services in order to communicate with the DOE regarding critical information about their child’s education and translation of documents produced by central DOE offices and schools which contain critical information regarding a child’s education).

[102] 42 U.S.C. § 2000d et seq.; 28 C.F.R. § 42.104(b)(2). In August 2000, President Clinton issued Executive Order 13166, which directed each federal agency providing federal financial assistance to issue guidance to recipients of such assistance on their legal obligations to take reasonable steps to ensure meaningful access for LEP persons under the national origin nondiscrimination provisions of Title VI of the Civil Rights Act of 1964, and implementing regulations. The Department of Justice issued guidance pursuant to the Executive Order advising that the requirement to take reasonable steps to ensure meaningful access to programs and activities for LEP persons is “designed to be a flexible and fact-dependent standard,” based on an individualized assessment that balances the following four factors: (1) the number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee; (2) the frequency with which LEP individuals come in contact with the program;(3) the nature and importance of the program, activity, or service provided by the program to people's lives; and (4) the resources available to the grantee/recipient and costs. Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455, 41459 (June 18, 2002).

[103] In Boureima, a case involving access to the services of a city government agency, plaintiffs alleged violations of the NYCHRL relating to availability of language services. 128 A.D.3d 532. The First Department found that “discrimination against LEP individuals such as plaintiffs constitutes discrimination based on national origin” and that “plaintiffs stated a claim for disparate treatment based on national origin pursuant to the City HRL.” Id. at 533. The case was later settled.

[104] N.Y.C. Admin. Code § 8-107(4)(b).

[105] See supra note 16 and accompanying text for discussion of Executive Orders 34 and 41 (2003), which serve as confidentiality policies surrounding access to City services regardless of immigration status.

[106] Some government services may be required to determine the immigration status of an individual to distribute such service. For example, federal government voucher housing programs are permitted to specifically ask for immigration status, as such service is only available to documented individuals. See U.S. Dep’t of Hous. & Urban Dev., Housing Choice Voucher Program Guidebook, Eligibility and Denial of Assistance (last accessed Aug. 13, 2024), https://www.hud.gov/site/documents/DOC_35615.pdf.

[107] See Cardenas, 2015 WL 7260567, at *8 (citing Williams, 872 N.Y.S.2d at 41 n.30). However, the conduct complained of must be more than “petty slights and trivial inconveniences.” Williams, 872 N.Y.S.2d at 41.

[108] See Ondaan, 2020 WL 7212457.

[109] See supra Section I.

[110] Under the NYCHRL, behavior that constitutes a hostile work environment is much broader than the “severe or pervasive” standard at the federal level; it is simply being treated less well because of membership to a protected category. Bermudez v. City of New York, 783 F. Supp. 2d 560, 579 (S.D.N.Y. 2011) (“[t]he NYCHRL imposes liability for harassing conduct that does not qualify as ‘severe or pervasive’ and questions of ‘severity and pervasiveness’ are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability.”) (citing Williams, 872 N.Y.S.2d at 38).

[111] Levin v. Yeshiva Univ., 96 N.Y.2d 484, 492–93 (2001) (citing N.Y.C. Admin. Code §§ 8-107(17), 14-151(c)(2)).

[112] N.Y.C. Admin. Code § 8-107(17)(a)(2).

[113] Raytheon, 540 U.S. at 52–53.

[114] Teasdale v. N.Y.C. Fire Dep’t, 574 F. App’x 50, 52 (2d Cir. 2014) (summary order).

[115] N.Y.C. Admin. Code § 8-107(17)(a); see also id. § 8-107(17)(b) (“The mere existence of a statistical imbalance between a covered entity’s challenged demographic composition and the general population is not alone sufficient to establish a prima facie case of disparate impact violation, unless the general population is shown to be the relevant pool for comparison, the imbalance is shown to be statistically significant, and there is an identifiable policy or practice, or group of policies or practices, that allegedly causes the imbalance.”).

[116] N.Y.C. Admin. Code § 8-107(17)(2)(b).

[117] Id.

[118] Id.

[119] Id. §§ 8-602–604.

[120] Id. § 14-151. “As used in this section, the following terms have the following meanings:

‘Bias-based profiling’ means an act of a member of the force of the police department or other law enforcement officer that relies on actual or perceived race, national origin, color, creed, age, immigration or citizenship status, gender, sexual orientation, disability, or housing status as the determinative factor in initiating law enforcement action against an individual, rather than an individual's behavior or other information or circumstances that links a person or persons to suspected unlawful activity.

[121] Id. § 14-151(1).

[122] The remedy in any civil action or administrative proceeding undertaken pursuant to N.Y.C. Admin. Code § 14-151 is limited to injunctive and declaratory relief.

[123] In addition, New York Labor Law § 215(1)(a) provides that “to threaten, penalize, or in any other manner discriminate or retaliate against any employee” includes “contacting or threatening to contact United States immigration authorities or otherwise reporting or threatening to report the suspected citizenship or immigration status of an employee or an employee's family or household member to a federal, state or local agency.”

[124] The NYCHRL has stronger retaliation protections than federal law. Under federal law, retaliation must involve some kind of materially adverse change in the terms and conditions of employment, while under the NYCHRL, retaliation can involve any act which would be reasonably likely to deter a person from engaging in protected activity (e.g., changing the location of plaintiff's locker or warning her about allegedly excessive use of sick days might not qualify as retaliation under the federal law but might qualify under the NYCHRL). Selmanovic v. NYSE Grp., Inc., No. 06 Civ. 3046(DAB), 2007 WL 4563431, at *4–5 (S.D.N.Y. Dec. 21, 2007).

[125] N.Y.C. Admin. Code § 8-107(7).

[126] Id.

[127] Id.

[128] See Centeno-Bernuy v. Perry, No. 03 Civ. 457, 2009 WL 2424380, at *7–8 (W.D.N.Y. Aug. 5, 2009). Such discrimination and retaliation are actionable under the NYCHRL, but they are also actionable under other wage and hour statutes, such as the New York Labor Law and Fair Labor Standards Act.

[129] N.Y.C. Admin. Code § 8-107(20).

[130] See In re Comm’n on Human Rights ex rel. Blue v. Jovic, OATH Index No. 1624/16, Comm’n Dec. & Order, 2017 WL 2491797, at *9 (May 26, 2017) aff’d sub nom. Jovic, Index No. 100838/2017 (citing Jing Zhang v. Jenzabar, Inc., No. 12 Civ. 2988, 2015 WL 1475793, at *12 (E.D.N.Y. Mar. 30, 2015)).

[131] See, e.g., N.Y. PUB. OFF. LAW § 3 (state law imposing citizenship requirements for certain positions, such as police officer).

[132] N.Y.C. Admin. Code § 8-107(14).

[133] See the Commerce Clause, Art. I, Sec. 8, cl. 3 of the U.S. Constitution; the Naturalization Clause, Art. I, Sec. 8, cl. 4; the Migration and Importation Clause, Art. I, Sec. 9, cl. 1; see also Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889); Fong Yue Ting v. U.S., 149 U.S. 698, 711 (1893).

[134] IRCA required employers to attest to their employees’ immigration status; made it illegal to hire or recruit illegal immigrants knowingly; and legalized certain seasonal agricultural undocumented immigrants. 8 U.S.C. § 1324a et seq.

[135] However, it is unlawful to discriminate against someone once they are in the workplace based on their immigration status. See Section III(A)(1).