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.

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.

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.

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