How Federal Employment Law Affects Discrimination in New York Based on Criminal History

sunbeamNew York City’s employment discrimination statute is one of the most comprehensive in the nation, protecting job seekers and employees from discrimination based on a wide range of factors. Since 2015, this has included discrimination because of criminal history. Once a person has completed the punishment they received for a criminal offense, we often say that they have “paid their debt to society.” In truth, they often continue “paying” through a lack of employment opportunities, regardless of whether their particular criminal record has any bearing on the job they are seeking. Laws like New York City’s Fair Chance Act (FCA) and Los Angeles’ Fair Chance Initiative for Hiring Ordinance (FCIHO) specifically target discrimination based on criminal history, but federal law may also play a role. Guidance from the Equal Employment Opportunity Commission (EEOC) states that criminal history discrimination may violate Title VII of the Civil Rights Act of 1964 if it disproportionately affects employees and job applicants based on a protected category like race or national origin.

Some employers around the country maintain policies against hiring people with felony convictions, or even people with misdemeanor or arrest records. Laws like the FCA seek to eliminate hiring practices that disqualify job applicants at the beginning of the process or that discourage them from applying in the first place. Under the FCA, employers may not advertise that a job opening is only available to people without criminal records. N.Y.C. Admin. Code § 8-107(11-a)(a)(1). Employers are further prohibited from asking job applicants about their criminal history, if any, until they have made a conditional offer of employment. Id. at § 8-107(11-a)(a)(3). If an employer makes an adverse employment decision based on criminal history information obtained at this point, they must notify the applicant in writing and give them an opportunity to respond. Id. at 8-107(11-a)(b).

Laws like the FCA specifically address the use of criminal history in employment decisions, and they also generally prohibit discrimination on the basis of criminal convictions or arrest records. Id. at §§ 8-107(10), (11). Title VII’s protections against discrimination, on the other hand, are limited to five broad categories:  “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000-2(a). These include adverse actions like refusing to hire or firing an individual because of a protected status, as well as other workplace practices that adversely affect certain employees because of that status. Even policies or practices that appear neutral with regard to race or another protected category—i.e., lacking discriminatory intent—could violate Title VII because of discriminatory impact.

In April 2012, the EEOC issued a guidance document on the use of arrest and conviction records in employment decisions. Although Title VII does not specifically mention criminal history, employers can approach the issue in ways that violate the law. An obvious example would be an employer that deals with criminal history in different ways based on an applicant’s or employee’s race or national origin. This would constitute “disparate treatment” discrimination. A seemingly neutral employment policy dealing with criminal history could also violate Title VII due to “disparate impact” if it affects individuals of one particular race or national origin at a disproportionate rate.

The knowledgeable and skilled criminal conviction discrimination lawyers at Phillips & Associates advocate for New York City job applicants, employees, and former employees in claims for unlawful workplace practices like criminal history discrimination. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case.

More Blog Posts:

Federal Agency Offers Guidance to Employers on Legal Requirements for Pre-Hiring Background Checks, New York Employment Attorney Blog, May 26, 2017

State Legislature Adds Juvenile Records to Prohibition on Criminal History Discrimination in Employment, New York Employment Attorney Blog, April 4, 2017

New State Law Bars Employers from Considering Juvenile Records, New York Employment Attorney Blog, January 19, 2017

Photo credit: Hans [CC0 1.0], via Pixabay.

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