Articles Posted in Criminal History Discrimination

New York City’s antidiscrimination statute prohibits the use of job applicants’ criminal history in a discriminatory manner. People with criminal records often find that many employers are unwilling even to consider hiring them, regardless of whether their particular history has any bearing on the job they are seeking. Numerous jurisdictions around the country have enacted “Ban the Box” (BTB) laws, which limit employers’ use of criminal history information during the hiring process. Even in jurisdictions that do not have a BTB law, however, the discriminatory use of criminal history by employers may violate existing antidiscrimination laws if it has disparate impact based on a protected category. A major retailer recently settled a lawsuit alleging that its use of criminal background checks constituted disparate impact discrimination based on race in violation of federal law. Times, et al v. Target Corp., No. 1:18-cv-02993, complaint (S.D.N.Y., Apr. 5, 2018). If you believe you were discriminated against during the hiring process at a company, contact a dedicated New York employment attorney.

The “box” in the name “Ban the Box” refers to the checkbox on many job applications regarding criminal history. Checking that box has often meant that one’s application will go no further—or will go directly in the trash can. The New York City Human Rights Law has BTB provisions making it an “unlawful employment practice” for employers to discriminate based on “convict[ion] of one or more criminal offenses” or “an arrest or criminal accusation.” N.Y.C. Admin. Code §§ 8-107(10)(a), (11)(a). Employers must follow procedures set forth by state law regarding inquiries about criminal history. They may not make any inquiries whatsoever prior to extending a conditional offer of employment. After that, any adverse decision based on criminal history must be reasonably related to the specific job. The employer must notify the applicant in writing of the reasons for the adverse decision, and give the applicant a chance to respond.

A “disparate impact” discrimination claim involves an employment practice that disproportionately affects employees on the basis of a protected category, such as race, even if the employer has no intent to discriminate. The U.S. Supreme Court identified this claim in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The case involved an employer’s policy requiring a high school diploma or an “intelligence test” for certain jobs. Id. at 426. The court found that the policy was a “‘built-in headwinds’ for minority groups” that was “unrelated to measuring job capability.” Id. at 432. Regardless of the employer’s apparent lack of discriminatory intent, the court ruled that it had violated Title VII of the Civil Rights Act of 1964.
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The New York City criminal conviction discrimination law strictly limits employers’ ability to consider criminal history in employment decisions. The Fair Chance Act (FCA), which amended the New York City Human Rights Law (NYCHRL), is known as a “Ban the Box” law. States and cities all over the country have enacted BTB laws, so named because of their prohibition on inquiries about criminal history on job applications, often in the form of a check box. At the federal level, the Fair Credit Reporting Act (FCRA) regulates the use of consumer credit information, which can include criminal history. A pair of putative class actions are alleging criminal history discrimination against two New York City event centers under city and federal laws. Millien, et al. v. The Madison Square Garden Co., et al., No. 1:17-cv-04000, 1st am. complaint (S.D.N.Y., Jul. 14, 2017); Kelly v. Brooklyn Events Ctr., LLC, et al., No. 1:17-cv-04600, complaint (E.D.N.Y., Aug. 4, 2017).

The NYCHRL, as amended by the FCA, prohibits New York City employers from discriminating against job applicants based solely on “an arrest or criminal accusation.” N.Y.C. Admin. Code § 8-107(11), N.Y. Exec. L. § 296(16). Employers may not ask about criminal history at all until they have “extended a conditional offer of employment to the applicant.” N.Y.C. Admin. Code § 8-107(11-a)(a)(3). They must follow guidelines established by state law when assessing an applicant’s criminal history, such as the length of time since the offense, the applicant’s age at the time, and the extent to which the offense might affect their “fitness or ability to perform one or more…duties or responsibilities.” N.Y. Corr. L. § 753(1)(c), N.Y.C. Admin. Code § 8-107(11-a)(b)(ii). If an employer makes an adverse decision based on criminal history, it must notify the applicant and give them an opportunity to respond.

The FCRA regulates the collection, dissemination, and use of “consumer reports,” defined to include information compiled by a consumer reporting agency in exchange for compensation, which may include information on an individual’s “character, general reputation, personal characteristics, or mode of living,” and which is intended for use in employment decisions. 15 U.S.C. § 1681a(d)(1)(B). This may include criminal records. Employers must obtain a job applicant’s consent to procure a consumer report and provide them with a disclosure of their FCRA rights. Id. at § 1681b(b)(2). Much like the FCA, the FCRA requires employers to notify applicants of adverse decisions based on criminal history and to allow time for a response. Id. at § 1681b(b)(3).

The New York State Human Rights Law protects many classes of people from various types of discrimination. One of the more unique aspects of New York’s anti-discrimination policy is the fact that it protects job applicants from being subject to discrimination based on their criminal history.New York has a general policy to “encourage the licensure and employment of persons previously convicted of one or more criminal offenses.” Thus, certain kinds of discrimination are prohibited by law. For example, someone cannot be subjected to discrimination based on an arrest record if that arrest did not result in a conviction. However, even in situations in which an applicant was convicted of a crime, the law may protect that applicant from discrimination as well.

New York discrimination law does not outright prohibit an employer from making a hiring decision based on an applicant’s criminal record. However, the employer must consult a list of considerations prior to doing so. For example, an employer should consider the following:

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Both the New York State and New York City anti-discrimination laws prohibit discrimination in employment on the basis of criminal history, offering protections not found in federal law. Last year, a federal appellate court sent several certified questions to the New York Court of Appeals in a New York criminal conviction discrimination case, asking it to clarify several points about the New York State Human Rights Law (NYSHRL). The answers provided by the New York court resulted in the federal court vacating a lower court order dismissing the plaintiffs’ claims.

The NYSHRL states that an employer commits an “unlawful employment practice” if they deny employment to a person because of a conviction for “one or more criminal offenses,” or because of “a finding of a lack of ‘good moral character’” based on a criminal conviction history, if doing so violates Article 23-A of the New York Corrections Law. N.Y. Exec. L. § 296(15). Article 23-A prohibits criminal history discrimination in employment unless an employer can show a “direct relationship” between a specific prior offense and the job in question, or “an unreasonable risk” to public safety or the safety of specific people or property. N.Y. Corr. L. § 752. The law identifies specific factors employers must consider when evaluating a person’s criminal history.

The plaintiffs in the case mentioned above were directly employed by a moving company, which had a contract to provide services to a shipping company. The shipping company maintained a policy that excluded individuals with certain felony convictions. The plaintiffs allege that this resulted in their termination by the moving company. They filed suit in federal court against the moving company, the shipping company, and the company that performed their criminal background checks, alleging that they violated the NYSHRL by failing to follow the procedures required by Article 23-A.

Here in New York State and New York City, the governments have a clear public policy that powerfully opposes discrimination in employment on a number of bases. These bases include, among other things, race, national origin, gender, religion, disability, age, sexual orientation, and gender identity. As of 2015, with the passage of the Fair Chance Act (FCA), another area of potential illegal discrimination is criminal history. Specifically, the act forbids many employers from inquiring about an applicant’s criminal background prior to making an offer of employment. If you think you’ve suffered from illegal discrimination based upon your criminal history, it is important that you act quickly and decisively, including retaining skilled New York criminal conviction discrimination counsel, since you may be entitled to payment as a result of your potential employer’s misconduct.

Displaying the city’s commitment to enforcing this new area of anti-discrimination protection, the city’s Human Rights Commission recently announced charges against roughly a dozen businesses that allegedly engaged in hiring practices that violated the FCA, according to a New York Daily News report. Under the rules established by the FCA, employers are not forbidden to make inquiries into the criminal backgrounds of job applicants. The act simply bars employers from engaging in such background checks unless the applicant is someone to whom the employer has made an offer of employment. This is designed to give all applicants an enhanced opportunity to compete on an equal footing. The act, then, banned the practice of asking about criminal history on an initial employment application, also known as “banning the box.” The FCA also bans employers from asking about criminal history in the course of a job interview.

Once the employer has made an offer of employment, the employer is legally permitted to investigate an applicant’s criminal past. Even then, the FCA imposes rules regarding the process of making an inquiry. The act says that, if the employer discovers criminal charges in an applicant’s history and decides to withdraw the job offer based upon that record, the employer must communicate this in writing to the applicant and give the applicant three days to respond.

New 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.

New 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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Criminal 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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State 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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Cities 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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