Articles Posted in Criminal History Discrimination

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.

fingerprintNew York City is leading much of the nation in providing protection for workers against discrimination on the basis of criminal history, but federal law offers some protection as well. These protections are important for helping people reintegrate into society—particularly by finding jobs—once they have paid their debt to society. The federal Fair Credit Reporting Act (FCRA) protects job applicants’ privacy with regard to background checks by employers. While the FCRA does not limit employers’ ability to consider information obtained in a background check, it requires them to notify an applicant of an adverse decision based on a consumer report and to allow the applicant an opportunity to correct any inaccurate or incomplete information. The Federal Trade Commission (FTC) recently offered guidance to employers about their obligations under the FCRA, which prospective employees might also find useful.

The New York City Human Rights Law (NYCHRL) requires employers to follow specific procedures during the hiring process with regard to an applicant’s prior convictions. An employer may not inquire about criminal history until it has made a conditional offer of employment, and then it must follow various disclosure requirements if it makes an adverse decision because of an applicant’s criminal history. See N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq.

Under the FCRA, a “consumer report” is a collection of information about an individual that relates not only to factors like their credit history but also to their “character, general reputation, [or], personal characteristics.” 15 U.S.C. § 1681a(d). This can include criminal convictions, charges that did not lead to convictions, and arrests that did not lead to charges. The FCRA requires consumer reporting agencies, which compile and distribute consumer reports, to correct inaccurate information. It also imposes restrictions and obligations on people and businesses that request consumer reports, including employers.

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Boyhood and lawlessnessCriminal history can be a major stumbling block to finding a job. Employers may not want to hire people with criminal records for a variety of reasons, but state and city laws in New York City prohibit discrimination based on criminal history, with only a few exceptions. “Criminal history” is a broad category that includes records of arrests, charges, convictions, probation, incarceration, and parole. Neither New York nor New York City laws specifically mention records of juvenile offenses. A new law that took effect in California at the beginning of 2017 expressly adds juvenile records to that state’s criminal history discrimination law. Juvenile records in New York are sealed as a matter of law, so this might not be an issue of serious concern in this state.

New York law limits the ability of employers to consider criminal history during the hiring process. Article 23-A of the Corrections Law, N.Y. Corr. L. § 750 et seq., prohibits public and private employers from discriminating on the basis of criminal history, with two exceptions:  (1) if an individual’s criminal record has a direct bearing on a specific job, or (2) if that individual’s history presents a significant risk to the safety of certain people or the public. If an employer makes an adverse decision based on an applicant’s or employee’s criminal history, Art. 23-A requires the employer to notify them in writing and give them an opportunity to respond.

Under the New York State Human Rights Law (NYSHRL), a violation of Art. 23-A may constitute an “unlawful discriminatory practice.” N.Y. Exec. L. § 296(15). The New York City Human Rights Law (NYCHRL) adopts this provision of the NYSHRL, specifically citing Art. 23-A. It also prohibits employers from stating in job advertisements that a position is limited to people with no criminal record, and it bars employers from asking an applicant about criminal history until they have made a conditional offer of employment. N.Y.C. Admin. Code §§ 8-107(9)(a)(3) – (5).

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envelopeState and local governments around the country are enacting laws addressing criminal history discrimination. Job seekers often find that a criminal conviction automatically disqualifies them for jobs, regardless of whether the particular conviction is relevant to the job. Finding employment is a critical part of reentering society after spending time in jail, and having a job is often a condition of probation or parole. Categorically denying people job opportunities on this basis harms those people, and it can also harm employees and the broader economy by keeping valuable workers out of the workforce. Laws against criminal history discrimination, often known as “Ban the Box” (BTB) laws, keep criminal history information out of the job application process until an offer of employment is imminent. The California Legislature enacted a law in 2016 that extends this protection to various types of juvenile criminal records.

At a minimum, BTB laws prohibit employers from advertising job openings as being open only to people without a criminal history, and from inquiring about criminal history in the initial stages of the job application process. The “box” in the name refers to the proverbial check box on job applications asking a yes/no question about criminal history, resulting in the automatic rejection of anyone who checks “yes.” In New York City, an applicant must have a conditional offer of employment before the employer may ask about their criminal history. N.Y.C. Admin. Code § 8-107(11-a)(a)(2). If the employer then makes an adverse decision based on this information, it must notify the applicant and give them an opportunity to respond.

A separate judicial system handles juvenile criminal cases in most states. They tend to use different legal terminology and procedures, and they focus more on rehabilitation than on punishment. Juvenile records are often sealed once a person turns 18, meaning that no one can access the records without a court order. Many states allow for the expungement of juvenile records, meaning that the records are removed and destroyed. New York automatically seals the records of juvenile cases that do not result in a conviction, known as a “finding of delinquency.” N.Y. Fam. Ct. L. § 375.1. In cases that result in such a finding, the defendant can file a motion to seal the records. Id. at § 375.2.

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ApplicationCities around the country are enacting “Ban the Box” (BTB) laws with the aim of helping people with criminal histories reenter the workforce without undue difficulty. The “box” in the law’s name refers to the check box on a typical job application asking if an applicant has any criminal history. Employers routinely dismiss any application with that box checked. While BTB laws most certainly have the best intentions, at least one study has identified a possible unintended side effect in relation to race discrimination. A “field experiment” conducted by researchers at Princeton University and the University of Michigan found a possible increase in racial bias after the enactment of BTB laws. This one study should not be interpreted as a refutation of BTB laws’ purpose or effectiveness. For one thing, they display a correlation without necessarily establishing causation. The study’s findings are still important to understanding the overall issue.

Most BTB laws, including the law in New York City, prohibit employers from advertising job openings in a way that excludes people with records of arrests or convictions. See N.Y. Admin. Code § 8-107(11-a)(a)(1). An employer may not inquire about criminal history until it has “extended a conditional offer of employment to the applicant.” Id. at § 8-107(11-a)(a)(2). If the employer takes an adverse action, such as withdrawing the conditional offer of employment, it must provide the applicant with written notice and give the applicant up to three days to respond. Id. at § 8-107(11-a)(b); N.Y. Corr. L. § 750 et seq. A violation of these provisions is deemed an “unlawful discriminatory practice” under New York City Law. See N.Y.C. Admin. Code §§ 8-107(9), (10); N.Y. Exec. L. § 296(16).

The study, entitled “Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment,” was published by the University of Michigan’s Law and Economics Research Papers Series in June 2016. The abstract states that, while BTB laws might reduce immediate discrimination on the basis of criminal history, this “could risk encouraging statistical discrimination” if “employers may make assumptions about criminality based on the applicant’s race.”

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credit reportNew York City law provides some of the most comprehensive protections against employment discrimination based on criminal history. No comparable protections exist under federal law, although the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., provides similar protections with regard to consumer credit information. Credit reports obtained by employers during the hiring process may include information regarding criminal history. A putative class action in federal court in New Jersey alleges that a major ridesharing company violated the FCRA by failing to disclose information found in drivers’ credit reports prior to taking adverse actions against the plaintiffs. Cuccinello, et al. v. Uber, Inc., et al., No. 2:15-cv-06604, am. Complaint (D.N.J., Dec. 7, 2015). The lawsuit also names the credit reporting agency (CRA) that issued the credit reports as a defendant.

The New York City Human Rights Law (NYCHRL) does not allow employers to inquire about criminal history until they have extended a conditional offer of employment to a specific applicant. If an employer makes an adverse decision after this point, it must notify the applicant of the reasons for this determination and give the applicant an opportunity to respond. This is similar to provisions of the FCRA relating to the use of credit reports for employment purposes.

The FCRA requires an employer to get a applicant’s written authorization to obtain a credit report, and to provide the applicant with “a clear and conspicuous disclosure,” in writing, stating that the information contained in the credit report may affect the employer’s hiring decisions. 15 U.S.C. § 1681b(b)(2)(A). Before a CRA may issue a report to an employer, the employer must certify that it has followed these requirements. Id. at § 1681b(b)(1)(A). If the employer bases an adverse action or decision on information contained in the applicant’s credit report, it must provide the applicant with a copy of the report and a notice of their rights under the FCRA. 15 U.S.C. §§ 1681b(b)(3)(A), 1681g(c).

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criminal-1054067_640Discrimination in hiring on the basis of a criminal record, including not only convictions but also arrests and charges, is a serious problem for millions of people in this country. Many cities and states have enacted laws protecting workers with criminal convictions from many forms of discrimination. Recent amendments to the New York City Human Rights Law (NYCHRL) offer some of the strongest protections in the country. The law includes an exception, however, for situations when other local, state, or federal laws specifically disqualify people with criminal records from certain types of employment. New York State has more than 1,000 such laws.

The NYCHRL generally prohibits employment discrimination based on criminal conviction history, using procedures established by state law. N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq. Under the New York State Corrections Law, an employer cannot refuse to hire someone or take other adverse employment actions against them based solely on criminal history, except in two situations:  if a “direct connection” exists between the criminal history and the specific job in question, or if the employer reasonably believes that employing the person would pose an “an unreasonable risk” to certain people, the general public, or private property. N.Y. Corr. L. § 752.

An employer that denies someone a job on one or more of the grounds stated in the Corrections Law must provide written notice to that person. The NYCHRL also prohibits employers from advertising job openings as only being open to people without criminal records. N.Y.C. Admin. Code § 8-107(11-a).

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Convict SurgeonfishCriminal history can be a major stumbling block during a job search. Laws at the state and city levels around the country protect job seekers from employment discrimination based on criminal history during the initial stages of the application process. New York City goes even further in restricting the extent to which employers may use criminal history as a factor in hiring decisions. New research about employees with criminal records appears to affirm the validity of these laws and the principles behind them.

“Ban the Box” (BTB) laws prohibit employers from asking about criminal history early in the job application process. The “box” refers to the check box on a typical job application form asking whether an applicant has ever been arrested, been charged with an offense, pleaded guilty or no contest, or been convicted in a court of law. Employers also may not inquire about criminal history during an initial interview. The point in the application process when employers may ask about criminal history varies from one BTB law to another, but it never occurs during the first stage.

New York City’s Fair Chance Act goes further than most other BTB laws. It states that employers may not discriminate against an employee or job applicant because of that person “having been convicted of one or more criminal offenses,” or because a conviction history resulted in “a finding of a lack of ‘good moral character.’” N.Y.C. Admin. Code § 8-107(10)(a). An employer can take conviction history into account once it has made a conditional offer of employment, but if it makes an adverse finding based on that history, it must notify the applicant or employee and give them an opportunity to respond. Id. at §§ 8-107(10)(c), (11-a)(b); see also N.Y. Corr. L. § 750 et seq.

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ArrestCriminal background checks have become increasingly common in the hiring process in recent years. Many employers refuse to consider an applicant with a criminal history, even when it has little to no relation to the job in question. This creates a vast population of people who are essentially unemployable, which is bad not only for those people but for everyone. A growing body of law at the city, state, and federal levels places limits on how employers may use criminal history in hiring decisions. Still, there is much progress to be made. The U.S. Department of Housing and Urban Development (HUD), which deals with federal housing discrimination law, recently issued new guidelines regarding the use of arrest records by landlords. While these guidelines do not directly affect employment, they are an important step forward on the larger issue.

When discussing how criminal history plays a role in employment discrimination, it is important to understand the difference between an arrest, a charge, and a conviction. An arrest record does not, by itself, indicate that a person committed a crime, nor should it necessarily serve as evidence of criminal activity. Similarly, a charge without a conviction should not imply criminal activity. A conviction means that either a person pleaded guilty to a criminal charge or was convicted after a trial, at which the state had to prove guilt beyond a reasonable doubt. A person may still be able to prove actual innocence, even after a conviction. Employers and others often fail to make a meaningful distinction between an arrest, a charge, and a conviction, so the law attempts to make the difference clear.

Cities across the country, including New York, have enacted laws restricting employers’ ability to inquire about criminal history during the initial stages of the job application process. These laws are commonly known as “Ban the Box” (BTB) laws, in reference to the check box on a typical job application that asks whether an applicant has ever been arrested, charged with, or convicted of a crime. New York City’s Fair Chance Act, which took effect in October 2015, prohibits employers from asking about criminal history until they have extended a conditional offer of employment. At that point, they must notify an applicant if they make an adverse decision based on the applicant’s criminal history, and they must give the applicant an opportunity to respond.

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Ehf718 (via Hebrew Home Website) [CC BY 3.0 (http://creativecommons.org/licenses/by/3.0/)], via WikipediaCriminal history is a major impediment to finding a job for many people in New York City and around the country. This is often true even when the nature of an individual job applicant’s criminal history has little to no relation to the job in question. Some state laws also specifically target people with criminal records, often in very broad terms. In late 2015, the Pennsylvania Supreme Court ruled that one such law, which excludes people with criminal convictions from a particular job market entirely, was unconstitutional. Peake, et al. v. Comm. of Pennsylvania, et al., No. 216 M.D. 2015, slip op. (Pa. Sup. Ct., Dec. 30, 2015).

Many local governments, including New York City, have adopted laws restricting employers’ ability to inquire about criminal history in the initial stages of the hiring process. See, e.g. N.Y.C. Admin. Code § 8-107(10). These laws are often known as “Ban the Box” (BTB) laws, in reference to the check box found on many employment applications asking whether an applicant has a criminal record. BTB laws are an important step in enabling people with criminal history to find employment, but the issue addressed in Peake is different. It involves the categorical exclusion of people with criminal histories from employment in a particular field.

Pennsylvania’s Older Adults Protective Services Act (OAPSA) is intended to protect “older adults,” defined as people age 60 or older, “who lack the capacity to protect themselves.” 35 Pa. Cons. Stat. §§ 10225.102, 10225.103. It prohibits nursing homes, and other facilities that provide care to older adults, from hiring any applicant who has been convicted of a wide variety of offenses, ranging from homicide to various fraud- and drug-related offenses. Id. at § 10225.503. The law gives no discretion to nursing home administrators and actually provides for administrative and criminal penalties for facility administrators who violate these provisions. Id. at § 10225.505.

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