HR Alert

New York Court of Appeals Addresses Employer Liability for Discrimination Based on Criminal Convictions

State's Highest Court Answers Various Questions Regarding Liability

The New York Court of Appeals has issued an opinion addressing the scope of employer liability for discrimination based on criminal convictions.

Opinion
In its opinion, the court answered various questions regarding employers' liability for discrimination based on criminal convictions as follows:

Q1. Does section 296(15) of the state Human Rights Law (see the "Background" section below), which prohibits discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party's "employer"?
A1. Yes, the law limits liability to a public or private employer. A non-employer may not be held liable for employment discrimination under section 296(15) of the state Human Rights Law.

Q2. How should courts determine whether an entity is the aggrieved party's "employer" for purposes of a claim under section 296(15) of the state Human Rights Law?
A2. Four relevant factors (p. 12-13 of majority opinion) determine who may be liable as an employer under section 296(15) of the Human Rights Law--with the greatest emphasis placed on the alleged employer's power "to order and control" the employee in his or her performance of work.

Q3. Does section 296(6) of the state Human Rights Law (see below), regarding "aiding and abetting" discriminatory conduct, extend liability to an out-of-state non-employer who aids or abets employment discrimination against individuals with a prior criminal conviction?
A3. Yes, the provisions regarding aiding and abetting extend liability to persons and entities beyond joint employers, and such provisions should be construed broadly. These provisions apply to out-of-state defendants.

Background
Under the New York State Human Rights Law (section: 296(15)), it is an unlawful discriminatory practice for any person, agency, bureau, corporation, or association (including the state and local governments) to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses when such denial is in violation of the provisions of Article 23-A of the state Correction Law.

Additionally under the state Human Rights Law (section: 296(6)), it is an unlawful discriminatory practice for any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under the law, or to attempt to do so.

Note: For additional details on employer coverage, please view the definitions sections of the New York Human Rights Law and Article 23-A of the state Correction Law.

Click here to read the text of the opinion. Employers with questions as to the decision's impact on workplace policies and practices are advised to contact a knowledgeable employment law attorney.


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