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An exception to New York law that allows individuals to ask applicants for household positions about their age, nationality and marital status does not extend to placement agencies, a Manhattan judge has ruled. “There is no question that domestic servants are excluded from coverage under the Human Rights Law … and that the Legislature never intended ‘to extend its reach into private homes and to subject private employment relationships of the most personal kind to governmental control,’” Supreme Court Justice Walter B. Tolub wrote in Matter of Pavilion Agency, 105887/05, quoting Thomas v. Dosberg, 249 AD2d 999. “However, while an individual may choose to hire a domestic servant using whatever criteria he or she may desire, it is this court’s opinion, that the privilege does not extend to an agent acting on behalf of a prospective employer, the privilege is personal to the employer,” he said. The decision is the latest development in an investigation by the New York state attorney general’s office into the domestic worker placement industry. The attorney general sent undercover investigators posing as job applicants to several agencies, including the petitioner, the Pavilion Agency. Founded in Manhattan in 1962, Pavillion places chefs, chauffeurs, butlers, nannies and housekeepers in private homes. “The attorney general’s position is that its investigations revealed that Pavillion ‘routinely inquired as to the national origin, age and marital status of job applicants and agreed to accommodate employer preferences with respect to the national origin and age of the domestic worker they sought to hire,’” Tolub wrote. After the attorney general served Pavillion with two rounds of subpoenas, Pavillion moved to quash the second set or, in the alternative, for an order to protect its clients’ identities. Tolub granted the second motion but declined to quash the subpoenas, holding that the exception that permits individuals to ask prospective household workers about typically prohibited issues, such as their age or marital status, does not extend to employment agencies. “To rule otherwise, would permit an employment agency to discriminate against prospective job applicants under the guise that they were merely filling the requirements of the prospective employer, and would constitute a violation of the Human Rights Law of this State,” he ruled. However, requiring Pavillion to disclose the names of its clients, as requested in the contested subpoenas, would interfere with the legislative desire to protect the personal nature of employer-domestic worker relationships. “To allow disclosure of that information would not only open the floodgates with respect to issues of client confidentiality and potential harassment, but it would effectively promote government interference with the most personal kind of employment relationships, which is exactly what the Legislature sought to prevent when it enacted the Human Rights Laws over fifty years ago,” the judge concluded. A spokeswoman for Attorney General Eliot Spitzer, Maritere Arce, said the decision reaffirms the attorney general’s subpoena powers. “It also makes absolutely clear that agencies cannot engage in discrimination despite an individual employer’s right to use whatever criteria they want in hiring domestic workers,” she said. Pavillion’s attorney, solo practitioner Keith S. Barnett, said that ignoring employer preferences “doesn’t serve the employer any purpose and it doesn’t serve the domestic any purpose because they’re not going to be employed.”

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