Memes and videos misrepresent a New York City law by suggesting that everyone in the city will be “banned” from using the term “illegal alien,” or face a $250,000 fine. Actually, the city has only clarified that immigration status can’t be used to discriminate against people in certain situations under a decades old law.
Nothing has changed about how the use of the term “illegal alien” could trigger a fine in New York City when used to discriminate against someone in an employment, housing, or service situation. But social media has been buzzing with indignation about the phrase recently.
Much of that buzz is based on a misunderstanding of the law.
Discrimination based on national origin in housing, employment, and service situations has been against the law in New York City since 1965, according to the legislative history included in recently released guidance from the New York City Commission on Human Rights. It’s been against the law to discriminate against someone based on immigration status since 1989, according to the same legislative history.
The city’s human rights’ commission clarified the ways in which discrimination based on citizenship status and national origin violate the law in a 29-page document released in September. It did so after seeing an increase in complaints about that type of discrimination, commission spokeswoman Alicia McCauley told us in an interview.
That document used the term “illegal alien” as an example of language that could be used to discriminate against someone. It said, “The use of the terms ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend a person or persons in the workplace, 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.” Similar examples are given for housing and service discrimination.
The highest possible fine that the human rights commission can levy for a discrimination case is $250,000, but it has only done so once, in a workplace sexual harassment case that is still working its way through the courts.
Those two things — the example of “illegal alien” used in the guidance and the highest possible fine — have been misconstrued online to mean that anyone who uses the term “illegal alien” in New York City will face a $250,000 fine.
Similarly, the recent guidance from the human rights’ commission uses the threat of calling U.S. Immigration and Customs Enforcement, or ICE, as an example of potential discrimination. In that example, it said, “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.”
That part of the guidance has spawned a meme that says, “DO NOT THREATEN TO CALL ICE $250,000 FINE JUST CALL ICE 1-866-DHS-2-ICE.”
But, again, threatening to call ICE can lead to a fine only if the threat is used to discriminate against someone in an employment, housing, or service situation.
The commission also clarified another part of the human rights law that prohibits discriminatory harassment. That section of the law applies more broadly — it goes beyond the employment, housing, and service arenas — but also requires force, or a threat of force, with the discriminatory behavior in order to be enforced.
This is one example of a situation that could result in action under the human rights law, according to the new guidance: “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.”
Those cases are much less common than the employment, housing, and service discrimination cases. In fiscal year 2019, for example, there was one complaint of discriminatory harassment for citizenship/immigration status or national origin and 334 complaints of discrimination in employment, housing, or service.
The bottom line is that, people in New York City are free to call another person an “illegal alien,” if they don’t use force or use the term to discriminate against an employee, a tenant, or a patron.
New York City Commission on Human Rights. NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Immigration Status and National Origin. Sep 2019.
McCauley, Alicia. Spokeswoman, New York City Commission on Human Rights. Phone interview. 2 Oct 2019.
New York City Human Rights Law. Section 8-126. Accessed 3 Oct 2019.
New York City Commission on Human Rights. Fiscal Year 2019 Annual Report. 2019.