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On March 14, the New York Court of Appeals <a href="https://www.nycourts.gov/ctapps/Decisions/2024/Mar24/20opn24-Decision.pdf" target="_blank" rel="noreferrer noopener">ruled</a> that the protections of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) can apply to non-New York state or city residents or employees, provided they “proactively sought” jobs based in the state or the city. This decision has the potential to open New York-based employers to a broad swath of NYSHRL or NYCHRL liability from current and potential employees who have ostensibly no connection with the state or the city other than their application to work there.

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In Nafeesa Syeed v. Bloomberg L.P., the Second Circuit asked the Court of Appeals to decide whether nonresidents can satisfy the “impact requirement” of the NYSHRL or the NYCHRL for the purpose of advancing a discrimination claim under state or city law. To advance a claim under the anti-discrimination statutes, controlling case law has required nonresidents to show that the complained-of discriminatory conduct had an “impact” within the state or the city. Thus, while nonresidents who worked in the state or the city have long been able to bring claims under the NYSHRL or the NYCHRL, it was unclear whether employees, or potential employees, who did not live or work in New York at the time of their application to a New York-based role could advance a failure-to-hire or failure-to-promote claim. This open question came squarely into the spotlight in Syeed, where the plaintiff (then a Washington, D.C.-based reporter) applied for various New York City-based positions at Bloomberg. After the plaintiff was passed over for another candidate with allegedly less experience and education, she asserted claims against Bloomberg under the NYSHRL and the NYCHRL, maintaining that her employer had discriminated against her on the basis of sex and race by denying her the New York-based promotions. The plaintiff was a California resident at the time she commenced the underlying action.

The Second Circuit specifically asked the Court of Appeals “[w]hether a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement of the New York City Human Rights Law or the New York State Human Rights Law if the plaintiff pleads and later proves that an employer deprived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds.” Answering the certified question in the affirmative, New York’s highest court held that a nonresident prospective employee can bring a claim under the NYCHRL or the NYSHRL because they would “personally feel[] the impact of a discriminatory refusal to promote or hire in New York City or State, because that is where the person wished to work (and perhaps relocate) and where they were denied the chance to do so.” The court emphasized that the plaintiff in Syeed, by applying for New York-based positions, “engaged in affirmative conduct to obtain an actual job opportunity based in New York City or State,” which therefore entitled them to the protections of the NYSHRL and the NYCHRL. In arriving at this conclusion, the court noted that the NYSHRL and the NYCHRL are to be liberally construed and that ruling otherwise “would serve to immunize employers from liability” for having engaged in discriminatory hiring conduct against nonresidents.

The impact on New York-based employers

This decision may cause employers to see an increase in discrimination claims because nonresidents who are not hired or promoted into a New York-based role can now assert failure-to-hire or failure-to-promote claims under the NYSHRL and the NYCHRL. Notably, while the court specifically limited its analysis to apply to “position[s] that requires the employee to be physically present in New York,” there is now an open question of whether employers that occasionally require certain employees to work in or travel to New York, even if the employee predominately works elsewhere (or remotely), may be impacted by this decision. New York employers should mitigate against future claims from out-of-state employees and applicants by reviewing their polices and ensuring that employees are aware of and trained on the company’s anti-discrimination and anti-harassment expectations.

Should you have any questions about this decision or its impact on your organization, the BakerHostetler Labor and Employment Practice Group is available to assist.

New York-Based Employers: Failure-to-Hire and Failure-to-Promote Claims Brought by Nonresidents Should Be on Your Radar!

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