Lawyer Monthly Magazine - May 2019 Edition

www. lawyer-monthly .com What classifies as criminal conviction discrimination? Before laying out the legal landscape, it is first important to understand what constitutes criminal conviction discrimination. Article 23-A of the New York Corrections Law 2 mandates that an application for employment cannot be deniedon thebasis of acriminal conviction simply because the prospective employer believes it shows a lack of “good moral character.” There are, however, two important exceptions. First, an employer can lawfully deny employment on the basis of a conviction if there is a direct relationship between the offense and the nature of employment. Second, employment can also be denied where it would pose an unreasonable risk to property, people, or the general public. The above standard indicates that not all instances of employment refusal constitute discrimination. Rather, 82 Expert Insight MAY 2019 CRIMINAL CONVICTIONS & DISCRIMINATION discrimination only occurs where the prospective employer denies employment based on a general assumption of poor moral character, despite the fact that there is neither a relationship between the conviction and the job, nor any reasonable risk of harm. Furthermore, it is extremely important to note that discrimination does not include rejection of applicants who lie about their conviction history 3 . An employer can reject a candidate who lies about a conviction, even if the said conviction is not related to the nature of the job. Clearly, in this instance, as is in most of life, honesty is always the best policy. What laws protect the convicted from discrimination? There are several laws protecting New Yorkers from criminal conviction discrimination. 1. TITLE VII AND THE FCRA Pursuant to Equal Employment Opportunity Commission (“EEOC”) Enforcement Guidance #915.002 (4/25/12), Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964: “An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended. […] A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability). [Moreover] [a]n employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job- related and consistent with Nearly one out of every three working-age Americans have a criminal conviction. 1 This means a significant portion of the population faces the real possibility that their employment prospects may be jeopardized by criminal conviction discrimination. Knowing your rights and understanding employer obligations as they relate to criminal history is therefore imperative. This article sets out the legal landscape - as regards Federal, New York State and New York City laws - that protect prospective employees from discrimination on the basis of their criminal history. business necessity (disparate impact liability).” Thus, the EEOC recommends that the employer develop a targeted screeningprogramwith respect to criminal backgrounds of applicants that considers at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). According to the EEOC, the employer’s policy should also provide an opportunity for an individualized assessment in order to determine if the policy as applied is job-related and consistent with business necessity. Finally, the EEOC points out that “[a]lthough Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.” Under the Fair Credit Reporting Act (“FCRA”), an employer may only obtain and use a commercial background report – whether it pertains to an individual’s criminal or credit history – “for employment purposes” (i.e., hiring, promotion, reassignment, or retention decisions) 4 . Moreover, the employer must get the individual’s permission Can Your Company Fire You If It Finds Out You Have A Criminal Record?