The New York City Commission on Human Rights has amended its legal guidance document pertaining to the enforcement of anti-discrimination laws, specifically concerning illegal immigrants.
Under the new guidance, the pejorative use of the term “illegal alien” or threats to call Immigration and Customs Enforcement by employers, landlords or operators of public accommodations is illegal.
“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,” the guidance reads.
Guilty persons could be charged with up to $250,000 in fines.
It is important to note that this development does not affect the city code itself and is simply an extension of existing laws that protect employees and tenants from discrimination. Immigration status (perceived or actual) has long been a protected status in New York City.
Therefore, calling a random individual an “illegal alien” out on the street is not unlawful, but an employer threatening to call ICE on a slacking worker is.
Nevertheless, this new interpretation of the law has some First Amendment problems.
The law is very broad in what speech it restricts, which means that employers or landlords have very little leeway when it comes to dealing with illegal immigrants.
For one, the law not only encompasses threats of reporting but actual reports to ICE if said reports are made with a discriminatory motive.
On the surface that may sound somewhat reasonable, because it may be in the city’s best interest to prevent employers from wasting resources reporting legal residents or even citizens to ICE based solely on ethnicity.
But ethnicity isn’t the only factor.
When you take a closer look at the law itself, any report to ICE can be defined as a discriminatory act.
Making a report to ICE simply because you know someone is an illegal alien can be punishable because the decision was based on the protected immigration status. Under the law, it’s just like firing someone for no reason other than his race.
This is problematic not only because it interferes with legitimate federal immigration law enforcement (remember, we’re talking about reporting someone that you know for a fact is breaking the law), but it also interferes with an employer or landlord’s First Amendment right to petition the government.
Simply put, it’s absurd to make reporting illegal activity illegal itself. It ties the hands of New York residents and effectively covers up widespread federal violations within the city.
Secondly, the law is too broad even when it remains within the confines of workplace harassment, Hans Bader wrote for Liberty Unyielding.
The guidance explicitly rejects the federal requirement that harassment must be “severe or pervasive,” which opens the door for the city to punish people for one-off comments. Bader even notes instances of judges allowing lawsuits regarding a single, non-threatening comment that a third-party listener found offensive.
Expanding the law away from harsher, more habitual acts of workplace harassment effectively turns New York law into a speech code. There’s a massive difference between a boss repeatedly exhibiting explicit animus toward an inferior and a coworker making an offensive comment that wasn’t even directed at anybody.
The New York Commission on Human Rights erases this distinction and adds “illegal alien” to its list of unapproved speech for good measure.
However, Bader contends that preventing use of the term “illegal alien” is still unconstitutional, even when the comment is motivated (or, more likely, perceived to be motivated) by racial animus.
This somewhat has to do with the political significance of the term because the threat against political speech is the overarching rationale for the First Amendment anyway.
However, the more obvious violation comes from the fact that labeling offensive speech as “harassment” does not create an exception to the First Amendment.
The fact that some listeners may find speech subjectively offensive does not constitute harassment by itself. That is merely a piece of the puzzle, as the Supreme Court decided in Harris v. Forklift Systems that the speech must create an objectively hostile work environment before it can be considered harassment.
So, what’s the main characteristic of speech that helps the court objectively determine if a workplace is hostile? You guessed it, “severe or pervasive” speech, the same qualification that New York threw out the window.
It seems rather cut and dry that New York’s new guidance will not stand up to constitutional scrutiny, but until then, it remains enshrined in law.
In fact, it was applied on Sept. 21 in a housing case, the first time that a landlord threatening to call ICE on a known illegal immigrant was found to be a violation.
If the landlord appeals, we may be in for another long legal saga.
Truth and Accuracy
We are committed to truth and accuracy in all of our journalism. Read our editorial standards.