The New York State Human Rights Law and the New York City Human Rights Law protect New York workers and job applicants who have criminal convictions in their past. In most situations, an employer who denies you employment solely because your criminal background includes one or more convictions has violated the state and the city’s anti-discrimination laws. As a recent federal case demonstrates, there are steps you can take if it happens to you. One of the first of those steps should be to obtain legal representation from a knowledgeable New York criminal conviction discrimination lawyer.
In that recent case, H.F. was an applicant for a job as a delivery worker for a vendor of a national grocery chain. He was also a man with a criminal past. During the application process, the employer discovered that, back in the 1990s, H.F. had been convicted of second-degree murder. (H.F. had served his time and was out on parole when he applied for the delivery job.)
The employer rejected H.F., so he sued for discrimination.
His discrimination lawsuit alleged two types of violations. For one thing, the employer allegedly discriminated against him based on his criminal background in violation of the NYSHRL and NYCHRL. Also, the application processes themselves were “discriminatory screening policies and practices” that violated state and city anti-discrimination laws.
He targeted his lawsuit against the vendor, the grocery chain, and the grocery’s parent company, Amazon.
The man’s lawsuit was successful in clearing the all-important early-stage hurdle of a defense motion to dismiss. In that motion, the defendants argued that H.F. didn’t have a viable discrimination claim and, even if he did, he didn’t have a viable claim against Amazon and the grocery.
The court, however, ruled for the applicant. Even though H.F. only applied for employment with the vendor, he was nevertheless allowed to include Amazon and the grocery chain as “prospective employers” under New York State and New York City discrimination law.
In New York, the law has established a four-factor test for deciding whether or not someone is your prospective employer. Those criteria are: who selects and engages the worker, who pays the worker, who holds the power to fire the worker, and who holds the power to regulate and control the worker’s conduct on the job.
H.F. alleged that Amazon and the grocery controlled “every aspect of” the vendor’s workers’ jobs, including training and supervising the vendor’s employees. This was enough to establish a viable claim that Amazon and the grocery were among H.F.’s prospective employers. Additionally, the court found that Amazon had “veto power” over the vendor’s hiring decisions, which was a very significant piece weighing in favor of the prospective employer argument.
The Narrow Exceptions to NY’s Ban Against Criminal Conviction Discrimination
New York State and New York City carve out two exceptions from the prohibition against criminal conviction discrimination. Those exceptions cover ex-convicts whose offense bears a “direct relationship” to the job they are seeking, and ex-convicts who pose an “unreasonable risk” to the public. The direct relationship exception only applies when the nature of the crime “has a direct bearing” on the applicant’s “fitness or ability to perform one or more of the duties or responsibilities necessarily related” to the job.
So, for example, the direct relationship exception might justify a trucking company rejecting a woman applying for a truck driving job if she had multiple convictions for operating a commercial truck while intoxicated, and the risk exception might justify, say, rejecting a man convicted of multiple instances of child rape from a job at an elementary school.
The job H.F. sought, however, was one of a delivery driver and his crime was not a vehicular offense, therefore, the judge ruled that there was no direct relationship.
H.F. countered the risk exception by offering arguments tending to show his rehabilitation and lack of threat to the public. In paroling the man, state authorities had already determined that he “did not pose an unreasonable risk to anyone’s property, safety, or welfare.” He also had “individuals familiar with his life since his release from prison” who could testify that he was rehabilitated.
A Conditional Offer of Employment Must Precede Any Criminal History Check
When it came to the procedural aspects of the employer’s hiring process, H.F. succeeded in identifying several arguable violations of the law. For one thing, the Fair Chance Act is very clear that a prospective employer can only make an inquiry into an applicant’s criminal background if the employer has already made a conditional job offer to that applicant. In H.F.’s case, the criminal history inquiry allegedly occurred well before the conditional employment offer stage of the process.
Everyone is entitled to a fair shot at employment, even people who have committed crimes in the past. If you’ve suffered employment discrimination because of your criminal past, you may be entitled to a judgment and compensation under New York State and New York City’s anti-discrimination laws. Get in touch with the skilled New York criminal conviction discrimination attorneys at Phillips & Associates to learn more about your legal options and how we can help you achieve success. Contact us online or at (212) 248-7431 today to set up a free and confidential consultation.