New York City’s “Ban the Box” Law Could Put Employers in an Unusual Position

Cities and states around the country have enacted “Ban the Box” (BTB) laws, which prohibit employers from asking about criminal history during the initial stage of the job application process. New York City’s Fair Chance Act (FCA), which took effect in October 2015, amends the New York City Human Rights Law (NYCHRL) to protect job applicants who might have had a hard time finding a job because of a criminal record. Some critics have claimed that the law might come into conflict with an employer’s legal duty to protect its employees under statutes and the common law. Balancing the interests promoted by BTB laws with those represented by laws regarding, for example, sexual harassment may be a matter for New York courts to consider in the near future.

BTB laws prevent employers from excluding applicants with criminal records right away because they had to check a box on an application form that asked whether they had a criminal record. Under the FCA, employers cannot advertise that a job is only available to applicants without criminal records, and they cannot inquire about criminal history during the initial phase of the application process. An employer can ask about criminal history once they have extended a conditional offer to an applicant, but the FCA establishes strict procedural requirements.

Once an employer has made a conditional offer of employment, the FCA allows it to consider criminal history, but only to the extent permitted by Article 23-A of the New York Corrections Law. N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq. An employer may only take adverse action, such as revoking the conditional employment offer, if the individual’s criminal history is directly related to the job at issue, and employing the individual “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” N.Y. Corr. L. § 752.

Federal, state, and city laws in New York City allow claims against an employer for the sexual harassment of an employee by a co-worker, rather than a manager or supervisor, if the claimant can establish that the employer was aware of the harassment but failed to take action. Conduct that constitutes sexual harassment ranges from inappropriate comments of a sexual nature to outright sexual violence. Anti-discrimination laws provide a remedy once an act of harassment or assault has taken place, but New York common law might also allow a claim based on the theory of negligent hiring.

A negligent hiring claim in New York requires proof that the employer knew, or should have known, about an employee’s propensity toward a tortious or criminal act, that they hired the employee regardless of this propensity, that the employee committed the same sort of act while at work or otherwise on the employer’s premises, and that the claimant suffered damages as a result. Papelino v. Albany College of Pharm. of Union Univ., 633 F.3d 81, 94 (2d Cir. 2011); Detone v. Bullit Courier Service, Inc., 140 A.D.2d 278, 279 (N.Y. App. Div. 1988). An employee with a history of sex crimes could put an employer at risk of such a claim, see Haddock v. City of New York, 553 N.E.2d 987, 992 (N.Y. 1990), as could an individual with a record of termination from prior jobs due to sexual harassment. How these laws intersect with BTB laws might remain to be seen.

The employment discrimination attorneys at Phillips & Associates represent employees and job applicants in the greater New York City area in claims for workplace discrimination and other unlawful practices. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation with an experienced and knowledgeable advocate for employee rights.

More Blog Posts:

Job Applicant Claims Inaccurate Criminal History Resulted in Lost Job Opportunity, Violated Federal Law, New York Employment Attorney Blog, December 17, 2015

Inquiring About Criminal History in the Initial Stages of the Hiring Process Is Now Unlawful for Most New York City Employers, New York Employment Attorney Blog, October 28, 2015

Bronx Family Court Grants Protective Order in Sexual Harassment Dispute, New York Employment Attorney Blog, March 5, 2014

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