Articles Posted in Criminal History Discrimination

Criminal history can be an enormous impediment to obtaining employment. People often find themselves shut out from many opportunities, even when their particular history of arrest or conviction has no bearing at all on the job they are seeking. New York City employment discrimination attorneys can look to the Fair Chance Act (FCA) in claims for discrimination on the basis of criminal history. A related issue involves drug testing during hiring. Marijuana is legal for, at a minimum, medical use in more than half of the states in the country, including New York. Many employers, however, continue to use marijuana testing to eliminate job candidates. Local Law 2019-091, which will go into effect in New York City in May 2020, will prohibit pre-employment testing for marijuana in many situations.

The FCA bars employers from inquiring about criminal history until the final stages of the hiring process. N.Y.C. Admin. Code § 8-107(11-a)(a)(3). Employers may not discriminate against job applicants solely on the basis of criminal history, unless they follow procedures set forth by state law. Id. at §§ 8-107(10)(a), (11-a)(b); N.Y. Corr. L. § 750 et seq. Exceptions include jobs that require specific security clearances, and situations where an individual’s specific history would directly affect the job in question.

While marijuana remains highly controlled under federal law, most states have eased restrictions to various extents. California was the first state to allow medical marijuana use, and Colorado was the first to allow recreational use. New York enacted medical marijuana legislation in 2014. While the state has not decriminalized it to the extent of states like Colorado, it recently downgraded possession of small amounts from a criminal offense to a civil violation.
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New York City’s Fair Chance Act (FCA), which took effect in 2015, bars employers from asking about a job applicant’s criminal history during the initial stages of the application process. The FCA draws extensively from state law provisions that outline a procedure employers must follow when considering a job applicant’s arrest or conviction records later in the hiring process. A bill passed by the New York Legislature earlier this year amends the New York State Human Rights Law (NYSHRL) to expand the list of items that employers may not inquire about or act upon with regard to criminal history. The new provisions will take effect on July 11, 2019. New York City has updated its enforcement guidance on the FCA in anticipation of the new state law provisions.

Employers in New York City may only inquire about an applicant’s arrest or conviction history once they have made a conditional offer of employment. N.Y.C. Admin. Code § 8-107(11-a)(b). Even after employers obtain criminal history information, they are limited in their ability to use it to make any adverse decision. The FCA requires employers to follow the procedures outlined in Article 23-A of the New York Corrections Law. These state-law provisions identify factors that employers must consider in assessing an applicant’s criminal history, such as the relevance of the criminal offense to the job sought. If an employer makes an adverse decision, e.g. a decision not to hire the person, because of their criminal history, they must provide a written statement to the applicant explaining their decision, and they must give the applicant an opportunity to respond.

The NYSHRL bars employers from inquiring about or considering certain types of criminal history at any point in the application process. See N.Y. Exec. L. § 296(16). Currently, this includes criminal proceedings that were terminated by the state, followed by a sealing of the file. It also includes cases in which the job applicant was adjudicated as a youthful offender, and other proceedings in which the records have been sealed. New York City has adopted these standards as part of city law. N.Y.C. Admin. Code § 8-107(11). The Governor of New York signed S. 1505-C into law on April 12, 2019. The new law amends § 296(16) to add “an order adjourning the criminal action in contemplation of dismissal” (ACD) to the list of items that employers may not consider. N.Y. L. 2019, c. 55, pt. II, subpt. O, § 2.
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A criminal record might be one of the greatest impediments to finding employment in the U.S. Employers may overlook applicants with criminal history altogether, even if their particular record would have little to no bearing on the job they are seeking. At the same time, steady employment is a common condition of parole, probation, and other forms of community supervision in the criminal justice system. A lack of employment opportunities is believed by many to be a significant factor in recidivism. To put that another way, the ability to find a job helps people stay out of trouble once they have paid their debt to society. To help people overcome many employers’ reluctance even to consider job applicants with conviction or arrest records, “Ban the Box” (BTB) laws restrict employers’ ability to ask about those matters during the application process and limit their ability to use that information in their decision-making process. In December 2018, Westchester County, New York enacted Local Law LL-2018-14, the “Fair Chance to Work Law.” The new law is similar to BTB laws in New York City and at the state level.

BTB laws get their name from the checkbox on many employment applications asking whether an individual has ever been arrested or convicted of a criminal offense. These laws prohibit employers from asking about criminal history during the early stages of the hiring process—in other words, they ban the checkbox. Employers are also prohibited from advertising a position as being unavailable to people with criminal history. This is somewhat similar to prohibitions on job listings, property listings, and other public notices that discriminate on the basis of race or other factors. Employers may inquire about criminal history later in the process but must be able to justify any adverse decision made on the basis of information obtained from those inquiries.

In New York City, the Fair Chance Act amended the New York City Human Rights Law to add BTB provisions. In addition to restrictions on inquiries about criminal history, employers may not discriminate on the basis of criminal history unless they follow provisions outlined in state law. See N.Y.C. Admin. Code §§ 8-107(10) – (11-a). Those provisions are found in Article 23-A of the New York State Corrections Law.
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New York City extends protections against employment discrimination to individuals with criminal records, who often find themselves excluded from job opportunities. New York City employment discrimination attorneys may draw upon city and state law in support of these claims. A lawsuit that worked its way through multiple New York courts alleged aider and abettor liability under state law against a company that hired the plaintiffs’ employer as an independent contractor. The case began in a Brooklyn federal district court in 2011, and returned there in 2018 after rulings from both the Second Circuit Court of Appeals and the New York Court of Appeals. The district judge ultimately ruled against the plaintiffs in their aider and abettor claims in Griffin v. Sirva, Inc., 291 F.Supp.3d 245 (E.D.N.Y. 2018), but the ruling offers a useful overview of how such a claim might work.

Both the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) generally prohibit discriminating against a job applicant on the basis of criminal history unless they follow specific provisions found elsewhere in state law. N.Y.C. Admin. Code § 8-107(10)(a), N.Y. Exec. L. § 296(15). Article 23-A of the New York Corrections Law requires employers to consider factors like the severity of the offense, the amount of time that has elapsed since the offense and conviction, and the extent to which the offense has any bearing on the position sought by the applicant. N.Y. Corr. L. § 753(1). Aiding and abetting a violation of either statute is considered a distinct unlawful discriminatory practice. N.Y.C. Admin. Code § 8-107(6), N.Y. Exec. L. § 296(6).

The plaintiffs in Griffin were employed by a company that “provides local warehouse services and transportation services.” Griffin, 291 F.Supp.3d at 248. The defendant hired the company as an independent contractor. The contract required the plaintiffs’ employer to comply with a “Certified Labor Program,” which reportedly involved criminal background checks that automatically excluded people with certain convictions. Id. The plaintiffs alleged that they were terminated by their employer after they did not pass this background check. They sued their employer and the defendant. They alleged that the defendant was a joint employer liable for aiding and abetting under the NYSHRL.
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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.

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