This is to help an employee or prospective employee identify if he/she has been a victim of unlawful employment discrimination based on his/her prior criminal convictions or conviction.
NYS' Prohibition Against Discrimination Against Employees Based on Prior Criminal Convictions
Under the NYS Human Rights Law (the "NYSHRL") (which incorporate NYS Corrections Law secs. 752, 753 & 754), "[an employer] shall [not] den[y] or act upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless:
(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. See, NY Executive Law sec. 296(15) & (16).
Similarly, under the NYC Human Rights Law (the "NYCHRL", which applies to employees who work in NYC, its an unlawful discriminatory practice "any employer [sic] . . . or agent thereof to deny employment to any person or take adverse action against any employee by reason of such person or employee having been convicted of one or more criminal offenses, or by reason of a finding of a lack of "good moral character" which is based on such person or employee having been convicted of one or more criminal offenses, when such denial or adverse action is in violation of [of article twenty-three-a of the correction law']. See, NYC Administrative Code 8-107(10).
Whether You've Been Discriminated based on Prior Convictions Requires a Fact-Sensitive Inquiry
Whether an employer could be found to have unlawfully discriminated a prospective or current employee for prior criminal convictions requires that the employer look at the several criteria which follow under Article 23 of the NYS Corrections Law to see whether there's a sufficient relationship between the type of conviction and the employee's job duties:
(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
(e) The age of the person at the time of occurrence of the criminal offense or offenses.
(f) The seriousness of the offense or offenses.
(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
As you can see, whether a particular employer can or cannot discriminate against a prospective or existing employee is a fact-sensitive analysis with no clear black and white rules. Whether you are an employee or an employer in a situation where one's prior criminal conviction or convictions are at play, you should consult with a qualified employment discrimination attorney before taking any action.
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Additional resources provided by the author
Further information can be found at the NYS Division of Human Rights and NYS Department of Labor website links below:
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