L. Discrimination Based on Conviction Records Under New York Law

• Jurisdiction: New York

L. Discrimination Based on Conviction Records Under New York Law

The New York State Human Rights Law²⁰¹ and the N.Y.C. Human Rights Law²⁰² prohibit an employer from discriminating against an applicant because of a conviction history, unless the employer has conducted a proper balancing required by Correction Law, Article 23-A.²⁰³ There are two major exceptions to the general prohibition against discrimination based on a criminal conviction record: "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"; and "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."²⁰⁴

In making a determination concerning an applicant with a criminal conviction record, an employer must consider: New York's public policy to encourage employment of persons previously convicted of a crime; the specific duties and responsibilities related to that at-issue employment; the relationship between the criminal offense, and the ability of the person to perform the duties or responsibilities of the position; the time that has elapsed since the criminal offense; the age of the individual at the time of the criminal conduct; the seriousness of the crime; and any evidence presented by the individual with regard to her or his rehabilitation and conduct.²⁰⁵ The Court of Appeals has stated explicitly that the failure of an employer "to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive."²⁰⁶

In Acosta v...