Race and national origin discrimination is a major issue facing many New Yorkers of Latino descent. Employers, and even public officials, often falsely assume that anyone who is Hispanic must be an “illegal alien” and therefore barred from seeking gainful employment. While the government has every right to enforce immigration laws, policymakers cannot allow prejudice and fear to create discriminatory roadblocks to employment for citizens and lawful immigrants.
Targeting Workers' Speech a First Amendment Violation
Not everyone who needs to earn a living is able to find a full-time job. Many people are forced to work as day laborers. This often leads to conflicts with local authorities, who view day labor as attracting unwanted noise, traffic, and crime.
How far can New York municipalities go in discouraging day laborers? That was the subject of a recent federal appeals court decision. The case pitted organizations representing day laborers against the Long Island town of Oyster Bay. The town adopted a local ordinance in 2009 that banned anyone from “standing within or adjacent to” any public road and “soliciting employment of any kind” from passing cars.
The ordinance itself was never enforced. In 2015, a federal judge granted summary judgment to the plaintiffs in this case, issuing a permanent injunction to prevent Oyster Bay from carrying out the ban. The town then appealed to the U.S. Second Circuit Court of Appeals, which has appellate jurisdiction over all federal cases from New York.
In an August 22 opinion, a divided three-judge panel of the Second Circuit affirmed the district court and upheld the injunction. As the appeals court explained, the town's ordinance is a restriction of “commercial speech,” which is subject to a four-part test set forth by the U.S. Supreme Court. The fourth and final part of this test requires a government regulation affecting commercial speech be “narrowly drawn” to further a “substantial interest,” such as protecting the public's health and safety. A regulation that is not narrowly drawn is considered an unconstitutional infringement of “free speech” under the First Amendment.
In this case, the Second Circuit said the town's regulation was not narrowly drawn. To the contrary, it was an “extremely far-reaching” prohibition on constitutionally protected speech that posed “no threat to safety on the Town's streets or sidewalks.” The Court noted that while the ordinance banned soliciting employment from the streets, it did not prohibit “the most common forms of solicitation,” i.e. hailing a taxicab or bus. This suggested that solicitation “creates no inherent safety issue,” and by only targeting day laborers, that “raises the question whether the town's actual motivation was to prevent speech having a particular content.”
Have You Faced Discrimination Based on Your Country of Origin?
The Oyster Bay case illustrates the types of prejudices that day laborers and workers of Latino descent face every day in New York workplaces. If you have been the victim of national origin discrimination and would like to schedule a consultation with a qualified New York employment law attorney, contact the Law Offices of Mahir S. Nisar today.