New York Court of Appeals Clarifies Criminal History Discrimination Under State Law

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.

They also brought claims for aiding and abetting NYSHRL violations under N.Y. Exec. L. § 296(6). The court granted motions for summary judgment brought by the shipping company and the background check company, finding that neither company was the plaintiffs’ “employer.” Griffin v. Sirva, Inc., No. 11-cv-1844, mem. order (E.D.N.Y., May 29, 2014).

The Second Circuit Court of Appeals certified three questions about the NYSHRL to the New York Court of Appeals:

1. Is liability under § 296(15) limited to a plaintiff’s “employer?”
2. If so, how is “employer” defined?
3. Could the aiding and abetting provision of the NYSHRL apply to a non-employer in a claim under § 296(15)?
835 F.3d 283 (2d Cir. 2016).

The New York high court ruled that § 296(15) only applies to “employers,” but it established a broad definition of the term. Courts should apply the common law principle of agency, the court ruled, and should focus on “the alleged employer’s power ‘to order and control’ the employee in his or her performance of work.” 29 NY 3d 174, 186 (N.Y. 2017). The court also held that aiding and abetting claims may be brought against non-employers. Shortly after the court issued this ruling, the Second Circuit vacated the summary judgment orders and remanded the plaintiffs’ case. No. 15-1307, slip op. (2d Cir., May 31, 2017).

The criminal conviction discrimination lawyers at Phillips & Associates advocate for the rights of employees, former employees, and job seekers in New York City, helping them assert claims for unlawful employment practices under city, state, and federal laws. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to discuss your case with a member of our team.

More Blog Posts:

New York City Announces Charges Against Numerous Businesses for Illegal Job Application Questions, New York Employment Attorney Blog, November 22, 2017

How Federal Employment Law Affects Discrimination in New York Based on Criminal History, New York Employment Attorney Blog, October 25, 2017

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

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