Criminal History Discrimination

Under the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”), also known as the Fair Chance Act, it is unlawful for an employer to discriminate against an employee based on their criminal history depending on the circumstances.  At any stage in the hiring process or during employment, an employer is not allowed to make an inquiry about or require an applicant or employee to disclose information regarding a prior arrest record, a youthful offender adjudication, or a sealed conviction.[1]  Further, it may be unlawful for an employer to discriminate against a job applicant or an employee based on a pending arrest or charge as well as a prior criminal conviction if the Fair Chance Factors and/or Article 23-A Factors are not assessed or properly assessed.

Moreover, the NYSHRL, NYCHRL, and various other statutes allow for exceptions for discrimination based on criminal history such as for an application for employment as a police officer or peace officer.  Additionally, an employer may inquire about the end result of an arrest to prove the end result of the arrest was favorable for the individual.[2]  Further, under the NYSHRL, employers may discriminate, at any stage of the employment process, on the basis of pending arrests or pending criminal charges.[3]

However, the NYCHRL requires an employer to analyze the NYC Fair Chance Factors to determine whether an employer should make any employment decisions regarding job applicants based on pending cases and regarding employees based on pending cases and convictions during employment.[4]  Employer decisions can include, but are not limited to, the rescission of a conditional offer of employment or the denial of a transfer or promotion.  The NYSHRL and NYCHRL requires employers to assess the Article 23-A Factors to determine whether an employment decision can be made for job applicants and employees based on criminal convictions prior to employment.  The Article 23-A Factors assess if the job of the individual would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public, or if there is a direct relationship between one or more of the previous criminal convictions and the specific job held or sought. [5]  Further, in certain circumstances, such as the recission of a conditional offer of employment or termination of an employee, an employer must provide notice of a written copy of any inquiry it conducted as well as a written copy of its analysis and allow at least five business days from receipt of the inquiry and analysis to respond to the employer’s concerns.[6]

If you believe you may have been a victim of criminal history discrimination you should speak to an experienced New York employment law attorney, as your employer may be in violation of these laws.  To learn more or to schedule a consultation to discuss your situation, contact Borrelli & Associates, P.L.L.C. for a free consultation.

[1] Human Rights Law § 296.16; N.Y.C. Administrative Code § 8-107(11).

[2] Human Rights Law § 296.16; see e.g. Civil Service Law § 50(4).

[3] Equal Employment Opportunity Rights and Responsibilities Handbook, https://oer.ny.gov/system/files/documents/2022/10/equal-employment-opportunity-rights-and-responsibilities-handbook_4.22_0.pdf.

[4] N.Y.C. Administrative Code § 8-107(11-a); NYC Commission on Human Rights Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination on the Basis of Criminal History, https://www.nyc.gov/assets/cchr/downloads/pdf/fca-guidance-july-15-2021.pdf.

[5] N.Y. Correction Law § 753.1.

[6] N.Y. Correct. Law § 753(1)(h).