US-Mexico Border Fence. Image Credit: -Romel Jacinto

NYC May Fine You For Saying Illegal Alien…But Only If Intended As Harassment

The NYC Commission on Human Rights has drafted a legal enforcement guide to help with discrimination on the basis of national origin and immigration status. The New York City Human Rights Law (“NYCHRL”), otherwise known as Title 8 of the Administrative Code of the City of New York, prohibits discrimination in the workplace by employers and employment agencies, as well discrimination in housing by landlords,property managers, and hotel management. At work, employees, prospective employees, as well as interns, are also covered under its broad protections. NYCHRL also prohibits bias-based law enforcement profiling, as well as any other forms of bias-based harassment, even online.

What this essentially means is that the The New York City Commission on Human Rights will step in to investigate claims of violations, and therefore this is not a law without teeth. The Commission’s Law Enforcement Bureau allows potential victims to file a complaint. Alternatively, a complainant may use the court system to file. Direct or indirect evidence must be presented, in order for the accused to be able to defend themselves, as well as so that a decision may be reached that deals with facts. This all may all seem a bit unnecessary to some, however, almost 40% of New Yorkers hail from other nations,with 60% of New York residents living at home with an immigrant household member.

US-Mexico Border Fence. Image Credit: -Romel Jacinto

US-Mexico Border Fence. Image Credit: Romel Jacinto

The recently released guide does not alter the law; rather, it sheds light on NYCHRL’s protections against discrimination stemming from (actual or perceived) immigration status and national origin. Disparate treatment between individuals in any of the protected classes covered by the law, and others, therefore violates the NYCHRL. According to the document, disparate treatment covers, “…policies,treatment, harassment, and actions based on stereotypes and assumptions.” So, if you are discriminated against in New York because someone perceives you to be a member of a protected class, even if you aren’t, you’ll still be protected.

While the term “illegal alien” is not without precedent in the law, the document clarifies that such language may, indeed, fall under the protection of the NYCHRL. For instance, 8 U.S. Code § 1365. is entitled, “Reimbursement of States for costs of incarcerating illegal aliens and certain Cuban nationals.” This is not inconsistent, as we must remember that this is no blanket ban on speech, but rather only applies to situations when a person uses the term to deliberately dehumanize immigrants, or those they perceive as members of immigrant groups. From the NYC Commission on Human Rights document: “Alien” used in many laws to refer to a “non-citizen” person is a term that may carry negative connotations and dehumanize immigrants, marking them as “other.” And so, it all depends on context and usage.

“As discussed in Section III, the use of certain language, including “illegal alien” and “illegals,” with the intent to demean, humiliate, or offend a person or persons constitutes discrimination under the NYCHRL.” Even one statement or comment that may reveal biased views, may be cause for a suit, or complaint, to be rightly filed. If it’s a manager or other supervisor that speaks thusly, employers must take “immediate and appropriate action” to discipline the supervisor, so that such discrimination does not happen again, otherwise they are liable, just as the manager is, for the manager’s statements and behavior.

Threats to call ICE or other federal immigration authorities, or even local NYC police, are strictly prohibited, and cannot be used to coerce workers in any way. It then goes without saying that such unlawful threats cannot be used to keep workers toiling in unsafe, unequal, or otherwise unlawful conditions. Obviously, this is also considered harassment.

When it concerns employment, a job applicant does not have to prove citizenship status, and may not be asked to produce documentation affirming their citizenship. Of course, any job applicant must provide authorization to work, and so asking for such paperwork is not harassment. If an employer fails to ask for such documentation, as is their right, and the employee ends up being unauthorized to work, that still doesn’t give the employer legal protection to treat that employee unfairly. “Federal law allows employers to prefer to hire a U.S. citizen or national over a non-citizen where two candidates are “equally qualified” but only after fully considering all other applicants.” So, employers may prefer to choose citizens above non-citizens, but that does not, in and of itself, constitute discrimination.

Mexican Flag. Image Credit Esparta

Mexican Flag. Image Credit: Esparta.

While employers are permitted, even bound by other laws, to request proof that an applicant may work, employers may not choose to ask only those applicants with a foreign-sounding accent for such documents. What is done for one applicant, must therefore be done for all. Employers may not ask for a green card, if the prospective hiree provides any of the other Federally approved documents. Such a request would constitute discrimination under the NYC law. Even if the SSA (social Security Administration) sends a “Employee Correction Request Notice,” commonly usually called “No Match Letter,” an employer may not fire the employee, or ask that employee to take off from work until verified. Such behavior is also banned under NYCHRL.

Employers must provide a heads-up to employees, if served with notice that ICE is coming to raid the premises and check up on immigration status of employees. The provides employees time to prepare, and get their documents in order and up-to-date.

These laws also apply to those seeking housing, as well as tenants. A rental application cannot be refused because an interested party is not a US citizen,or because they speak with what seems to be a foreign accent. When it concerns public housing and specific benefits, management must request documentation proving citizenship. This is not a violation, because failure to do so would in turn violate other standing laws.

Threats to evict a tenant, or even an unlawful eviction, obviously violate this law. And, even a single biased statement about a tenant is grounds for a complaint.  “A  housing provider’s use of the terms “illegal alien” and “illegals,” with the intent to demean, humiliate, or offend a person or persons, amounts to unlawful discrimination under the NYCHRL. ” Of course, these protections apply, in full, concerning public accommodations as well.

All forms of discriminatory harassment or violence, whether in housing, employment, with regard to public accommodation, or by law enforcement, are strictly prohibited. But it’s not limited to those situations. Even a neighbor may be held accountable for bias crimes, when housing is involved. Yelling at neighbors that they must leave the block or ICE will be called, because they are non-citizens, or seem to be, is also a violation and covered under the law. The same would apply to workmates at a job site. What about people on a bus or train or New Yorkers in a school setting? These situations are not covered, explicitly, however, both can be work settings, so if it’s an employee claiming harassment by co-workers or managers, it seems that both cases would, in fact, be covered.

Border Patrol Vehicle. Image Credit Mesa0789

Border Patrol Vehicle. Image Credit: Mesa0789

Is this all so big a deal? Are other media outlets sensationalizing? It’s really in the intent. Landlords, employers, and others never had the right to discriminate or harass based on (actual or perceived) national origin or citizenship status. Does that mean that in every instance, using the term “illegal alien” constitutes a violation of the NYCHRL? The answer is clear: Only when such language is used to harass, and so intention is especially important here, as to whether someone has violated the law. Is it so clear that a fair adjudication may be made, with regard to intention? Many other laws wright heavily on intent, and so, this is not a new concept.

Does this mean that our free speech, as citizens, is being curtailed? In fact, a cursory review suggests it is not. Only sound bites in the news would suggest otherwise. Newspapers and TV stations love clicks and views. However, this is certainly not a new law for New York City, and any biased language against protected groups has always been covered under the law. Offenders have always been liable for “economic and emotional distress damages.” Violations are significant, with each offense costing $250,000, at most.

So just when would it be appropriate to use the term “illegal alien,” then? If Manager Joe tells employee Sue that employee Jeff is an illegal alien and faces hardships every day, and employee Jeff hears this, that’s hardly cause for protection under the law. However, if Joe tells Sue that Jeff, “is an illegal alien and if he screws up again we’re calling ICE,” such remarks certainly would fall under the purview of the NYCHRL protections.

If the manager told a worker, “You suck at your job because you’re an illegal alien,” then that would be a clear violation. However, stating,”You may end up finding a lot of discrimination everywhere because you’re an illegal alien,” then the Commission’s Law Enforcement Bureau would likely not pursue a case. Again, it’s all about intent, and this has been made into a political matter when it clearly is not. As New Yorkers, since at least 1945, when the Law Against Discrimination was first passed. It’s been amended and clarified over the years, and now even includes discrimination against a person’s unemployment status, or even past sex offenses.

The Sexual Orientation Non-Discrimination Act passed in 2002 made it so that sexual orientation became one of the protected classes in NYC, and in 2019, the Gender Expression Non-Discrimination Act, a bill to protect gender identity and expression, also passed. This new guidance about use of terms such as “illegal alien” does not alter the law, but merely clarifies existing legal code. New York City Local Law 97 of 1965 amended the then-decades-old NYCHRL code, adding “national origin” to the enumerated protected categories.

“Illegal alien” is but one term an employee, employer, hotel staffer, police officer, or other person might use to offend or hurt, with the intent to discriminate. Of course, there is a grey area, but that’s also the case with most laws. Context matters. And certainly, the issue of false claims is a significant one, but that has been the case as long as New York City has had this law on the books. An “illegal alien” is defined as anyone “who is in the United States unlawfully.”

A “Mexican” is anyone who is a Mexican national, or of Mexican descent. Both terms may be used to demean and harass; both terms may be used innocently. It’s always been up to the Commission’s Law Enforcement Bureau to sift through complaints and ascertain which are valid, and which are not.

https://www1.nyc.gov/assets/cchr/downloads/pdf/publications/immigration-guidance.pdf

40 Comments

  • Avatar NO CHANGE IN THE LAW says:

    so really nothing has changed

    this is not news

    I’m reading everywhere else it’s 1st amendment violation but really it isn’t

    you already couldn’t discriminate with racial or ethnic slurs

    NO CHANGE IN THE LAW

    • Avatar DUMP DEBLASIO! says:

      No change? How do you figure?

      If I can’t say a term that is in the USA lawbooks that sure isn’t free speech. You bet your bippy I’m mad as H***!

      My grandpa fought in WW II so we could have free speech not so some liberal J****** could come up with stupid laws to give M******* free money from OUR pockets.

      S**** THE M*******!

      This is MY country. Not theirs. Wake up and smell the coffee. Next they’ll be saying they get to live in the apt. for free because you didn’t salute the flag they hung in their window. Give me a break.

      DUMP DEBLASIO!

      • Avatar BUILD THE WALL says:

        WHAT DOES M******* STAND FOR?

        8 LETTERS

        VANA WHITE LET US KNOW

        I HAVE MY GOOD GUESS

        DO WE HAVE AN E? HOW ABOUT AN X?

        THIS NEWSPAPER CENSORS THE TRUTH

        JUST ANOTHER BIASED ONLINE RAG

    • The Liar The Liar says:

      Look, this is not shocking.

      Language changes with time.

      Especially about sensitive topics.

      What’s PC now? Retarded? NO. Learning Disabled? NO.

      Person with a learning issue?

      Sounds about right.

      Once the term ‘illegal alien’ became saturated with negative connotations, the term was history.

      This isn’t an issue of politics, it’s that these neutral terms must stay neutral, else they get scrapped by consensus.

      • Avatar C.F. Colombo says:

        Good point.

        I didn’t expect someone with a screen name like “liar” would have anything good to say.

        Guess I shouldn’t pre-judge you based on a name.

        Ahhh. I see the beauty in this law. You may not have meant it but your name proves the point. 😉

        Let anyone who throws around the word illegal suffer the consequences. It’s only right.

        If you don’t support undocumented immigrants, use your vote to make sure things change. Otherwise, it’s only right you stop complaining.

        • Avatar BUILD THE WALL says:

          GET T* OUT OF HERE

          I CAN COMPLAIN ALL I WANT

          YOU CAN’T STOP ME

          WHEN THE BORDER IS CLOSED I WILL SHUT UP

          TIL THEN PUT UP WITH ME B/C I’M NOT GOING TO BACK DOWN

          • Avatar BUILD THE WALL says:

            I AM RIGHT

            YOU ARE WRONG

            BUILD THE WALL

          • Avatar DF says:

            Caps lock- It’s a key. Learn to use it properly.

            Typing in all caps is like yelling.

            Is that what you intended?

            Or is your entire message (including SN) emphasized?

            The border has NOTHING to do with it. (See? I ONLY used caps on important words. Take note!)

            It’s about NYC and how the people within our city walls interact. Civility goes a long way. (Hint. Hint.)

            I don’t expect you’ll understand, but that’s OK.

            Yes. You have freedom of speech. I’ll uncover my ears when you’re done yelling.

            Open borders is one issue. Calling someone a name is another. You’re just a bit confused, now, aren’t you?

            >>DF<<

          • Avatar Dustin says:

            I like how you answer yourself below and say:

            “I am right and you are wrong.”

            That’s just confusing. Because you’re answered yourself. You make no sense.

            I agree with other posters that this has nothing to do with a border wall. The article discusses a New York City law. So lumping everything into one just baffles me.

            Oh, also the law doesn’t stop you from writing ILLEGAL on here or anywhere. You just can’t/couldn’t say it to a person when it involves house/policing/hotel accommodations/work. Nothing else. Not a new law. If you want to call a guy in the streets illegal, go ahead, but they may just call you something back. Or shake their head in disgust.

            Do you go out of your way to misinterpret reality? Or does it come easily for you? Very curious. Because you seem really good at that.

          • Avatar Shannon P. says:

            You are being a bully, sir. Can’t you just say how you feel and back it up without making people feel bad?

        • Avatar DF says:

          Nah. Let them complain. They probably get bossed around at home and come on here to feel big.

          BTW, I just found this news site today.

          So far, I really like what I see.

          I don’t mind hearing opposing viewpoints.

          I do mind stupidity. And unfortunately, it comes from all sides.

    • Avatar Shannon P. says:

      Anyone on here who wants to be able to call anyone else names is a bully, Plain and simple. There’s just no other explanation. Manners? You’re not supposed to call people names or threaten them. It’s not how your parents raised you (I would hope) and so why defend the practice?

      Common decency goes a long way. Stop defending the indefensible. Everyone deserves to be treated as a person, no matter what your color, age, national origin, or anything else. If you feel you need to put down others, there’s something missing in your life.

  • Avatar C.F. Colombo says:

    My family came here legally from Palermo back in the 30s. We faced discrimination. Unfortunately, there were no legal protections back then.

    I think it’s rude and crude to call a co-worker or tenant a illegal alien even if that happens to be their legal status under the federal law.

    This is not a new story. I read it everywhere else. But so far only this paper has any idea of what it’s really about. Very good reporting. Not liberal or conservative. Just factual. I prefer that.

    My family had to deal with all kinds of ethnic slurs. It’s good that NYC no longer permits this kind of behavior. Without fines, no one would take it seriously.

  • Avatar Do You See Them?????????????? says:

    Illegal alien! Stop right there and get back in your spaceship. I know you’ve traveled far to get here but little green men belong on Mars not in Manhattan. Sorry, dude.

    Did I break laws writing this? Too bad.

    • Avatar Hari the Vlucan says:

      The little green men are actually invisible and so are their spaceships.

      How do I know? A little purple guy told me all about the green men. He was mad they took is spaceship parking space in the clouds over Annadale.

      And the LGM contribute to Manhattan’s economy. Who else can do jobs without being seen? I hear they’re big in the repo business. Sneaky little guys.

  • Avatar Just A Guy says:

    I, personally, feel this is over-blown.

    I am not really about politics, so trust me, my motivation is not from seeing this through a lens.

    If I were to get a job and someone called me a “third-generation banana boater” because they know/think I’m Italian, that’s discrimination. Even if you said it once as an employer. That’s fair.

    I know the term “illegal alien” is actually right out of the lawbooks. But it’s also come to be an slur against people here illegally by some.

    I read the law and think the city was clear. It’s against the law to discriminate or use language that shows you think in a way that is biased.

    I’m just trying to think of exceptions.

    Let’s say a business was giving away a scholarship for employees. And an employee is here illegally.

    Some scholarships are only for US citizens you know. So saying that employee is ineligible because they are an illegal alien would not be bias.

    Like: Sorry Pancho, you’re an illegal alien and the scholarship is only open to US citizens. Try for another one somewhere else kid.

    Here’s where it gets complex. What if the employer made snide remarks regarding the employee? What if they made jokes about them being an illegal?

    Like: Looks like our illegal alien on staff is going to miss out on this one. Maybe now you regret jumping that fence Pancho?

    or

    Pancho you’re an alien. The scholarship is for real Americans.

    These are similar but the tone is different. I think the first example would be legal. The second is demeaning. The third? It may be demeaning, but maybe not.

    • Avatar THE JOKER says:

      Personally I don’t think any of those should be punishable by fines.

      Don’t we have the freedom to joke around anymore?

      • Avatar BUILD THE WALL says:

        I’LL SAY ANYTHING I WANT

        FIRST AMENDMENT

        FREE SPEECH M**********

        IT’S YOUR DUTY TO CALL ICE ON LAWBREAKERS

        HOW CAN THIS LAW SAY IT’S ILLEGAL

    • Avatar BUILD THE WALL says:

      “shows you think in a way that is biased.”

      SO IS THIS THE THOUGHT POLICE

  • Avatar Sally The Cat says:

    OK, fair enough.

    But when this reaches the courts, do the judges and magistrates have to say “undocumented immigrant” as well, when the laws on the books say “illegal alien?”

    Good question, no? 😛

    • Avatar StatenIslander.org_Editor says:

      Interesting question. I believe that the courts will use the term “undocumented immigrant,” henceforth. There’s just too much debate and politics involved in using anything else.

      -Staten Islander News Org Editors

      • Avatar BUILD THE WALL says:

        YES

        BECAUSE THE COURTS ARE AFRAID

        NO ONE HAS THE ***** TO STAND UP AND SAY THE EMPORER WEARS NO CLOTHES

        USE THE CORRECT LEGAL TERMS AND DEAL WITH IT

        • Avatar An average Jane says:

          How rude. Why would you even say such a thing?

          Don’t you know consideration for others is important?

          Should consideration for someone end just because they came here illegally? You don’t know their life story or what led them to literally walk across a desert with their kids in tow to live the American Dream.

          What if you’re overweight? Should we call YOU names?

          Illegal immigration happens because the US had an open border and life here was good. So people walked right in. If you lived in a place where gangs and cartels controlled everything and the police were afraid, and there was no hope that your child would have a better life, would YOU stay?

          Please get off your high horse and think before you open your mouth.

      • Sally The Cat Sally The Cat says:

        Thank you very much. 🙂

        I just wonder if it matters because no judge is going to use the term in a derogatory manner.

        And the law doesn’t cover what is said in a courtroom.

  • Avatar Supreme Court Justice Sonia Sotomayor says.... says:

    From the footnote of the pdf this article cites at the end:

    The use of the term “illegal” is problematic for many reasons, including that it purports to assign
    guilt to a person before a fair trial. In 2009, Supreme Court Justice Sonia Sotomayor became the first
    justice on the high court to opt for the term “undocumented immigrant” in an opinion.

    See generally
    Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009). In discussing Carpenter, she explained that using the term “illegal alien” creates the perception “that immigrants are all criminals and criminals in a negative sense of drug addicts, thieves, and murderers.”

    • Avatar StatenIslander.org_Editor says:

      Thank you, kindly, for adding this citation from the City’s clarified guidelines.

      -Staten Islander News Organization Editors

    • Sally The Cat Sally The Cat says:

      Hmm…makes sense. But before politicians were making an issue of illegal immigration, trying to make it seem like all of them are selling drugs and in gangs, no one would have thought this.

      Also, it is a crime to jump a border wall, no?

      As well as be in a country without paperwork to be there? I mean, it makes sense.

      If I jump my neighbor’s fence to get my frisbee, I’d be trespassing. Most neighbors wouldn’t call the police, but there’s always one on the block who is slightly unhinged and always yelled at us since we were in middle school. Just for hanging out in front of our own house. Isn’t jumping an international border a bigger deal than a backyard gate? We do have border patrols so I am thinking obviously yes.

  • Avatar Jeff Innis says:

    I’d be willing to bet the average reader of this news portal isn’t old enough to drink.

    Young people have such weird views about life these days.

    • Avatar cis-genered male says:

      OK u got me. Wanna buy me a beer now? jk Actually, I’m 22. Buying my own beer for a year now.

    • Avatar Howie Hunting says:

      So what? I’m smarter than you and I’m probably 1/3 your age!

      What did you score on the SAT?

      I bet you marvel at the fact that I used italics, right?

      oooooh, how’d they do that?

  • Avatar JillyJill says:

    This site is a joke. The staff must take a lot of naps. It looks like no work gets done. An article every few days with a staff of like ten people? That’s ludicrous.

    Archie Franks looks like he could use some dating pointers. No offense. It’s just a gut feeling I have. I am guessing you are single.

    Archie here is one for free. After you eat the seafood you love so much maybe wash your hands. Don’t worry I don’t stalking you. It says you love seafood right on your profile. lol

    And if you do somehow get a date make sure you brush that fishy taste from your mouth. Yuck.

    More important stop making that weird face. Leering at women does not work. News update.

    • Avatar Shannon P. says:

      Jill, we all have our own personal style, but I would suggest not flirting using put-downs. There’s just so many other ways to get a man’s attention. Like compliments. Especially on an article about bullying! Don’t you think that if you complimented the author, he’d be happier than to hear you saying things you know nothing about? I have had a good track record dating. Maybe it helped having three older brothers. But I know for sure guys like a compliment better than a diss. I’m sure you feel the same way. Maybe you have a sharp sense of humor, but in person and online are different. Maybe your tone of voice makes it work IRL but on a forum it just falls flat. I’m not putting you down or telling you what to do but think about what I’m saying. I can’t tell you to be sweet because maybe that’s just not how you act. We are all individuals but how would you like it if you wrote a store on here and a man started writing things publicly based on your profile? And incorrect things at that. Think about it.

  • Jilly Jill Jilly Jill says:

    I actually forgot what I was going to say! I got so carried away being annoying. I’m just good at that. lol Sorry about that. I really meant no offense. It’s just my way of teasing. You can tell I don’t socialize so well.

    I actually like men who are literate and I also enjoy seafood. Plus I actually feel the author makes some good points. Archie may be a bit old for me but I like older men. I hope that I didn’t offend anyone at SIlander too much. I know I have a big mouth. Again very sorry.

    • Archie Frank Archie Frank says:

      Thank you for the compliment, I think?

      I’ll have you know my personal hygiene is impeccable; I’m actually OCD about washing my hands, both before, and after, eating. Maybe I could brush and floss more, but who isn’t guilty of not brushing after each and every meal?

      I don’t quite understand how I’m leering at women; if you feel my profile pic depicts a “leering” countenance, would I not then be leering at anyone who views my photo, and not just women? I know; I’m not quite photogenic. That’s just my face. It’s OK. But please know I don’t leer. I respect women, and respect myself.

      I happen to find voluptuous women quite attractive. Usually, I’m fond of gingers, but blue rainbow hair is interesting as well.

      I’m not offended by the teasing; clearly you mean this all in jest. However, I would be interested in hearing about how you feel about this topic. What do you think? What are some of the questions this raises for you?

      And, since you brought it up. what are your favorite seafood restaurants on Staten Island?

      -Archie Frank
      Staten Islander News Org Editor

  • Archie Frank Archie Frank says:

    Oh, and, we’re actually quite busy.

    And, I can speak for myself, as well as the rest of our team when I honestly state that we all work diligently to bring Staten Island interesting news stories that present facts in an unbiased manner.

    There are many stories in the works that are in the process of final editing for publication. In any event, thanks for checking out our paperless hyper-local.™ Hope to see you again.

  • Avatar Vlad S. Coney Island, BKlyn says:

    I am on the fence on this. I mean I understand not be biased and violate laws. That much I can live with without any problems.

    BUT!!!

    I can’t report an illegal immigrant who applies for job with my company? If they get found _I_ will be the one facing fines.

    I came here legally. My entire family. But I get fined if illegal gets a job with my company. I love USA but this makes no sense.

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