N.Y. Court of Appeals Clarifies Liability in Criminal Conviction Discrimination Cases Under New York State Human Rights Law

Edgar M. Rivera, Esq.

In Griffin v. Sirva Inc., the New York Court of Appeals announced how New York State Human Rights Law § 296 (Section 296) should be interpreted with respect to employer and nonemployer liability for criminal conviction discrimination. Griffin involves two former employees of Astro Moving and Storage Co. Inc. (Astro), Tranthony Griffin and Michael Godwin. Griffin and Godwin sued Astro, a moving and storage company; Allied Van Lines, Inc. (Allied), a nationwide moving company with whom Astro had contracted to perform moving services­; and Sirva Inc. (Sirva)­, Allied’s parent company, for discriminating against them by terminating their employment for failing to pass Allied’s criminal background screen due to prior criminal convictions for sexual offenses.

After hiring Griffin and Godwin, Astro contracted with Allied to perform moving services. The contract required Astro to adhere to Allied’s Certified Labor Program guidelines, which provide that employees who “conduct the business of Allied at customer’s home or place of business […] must have successfully passed a criminal background screen […] as specifically approved by Allied.” If Astro violated these guidelines by using unscreened labor, it was subject to escalating monetary penalties. Under the Certified Labor Program guidelines, employees automatically failed the criminal background screen if they had ever been convicted of a sexual offense. In 2011, Griffin and Godwin consented to have Sirva investigate their criminal records, which identified their convictions, and Astro terminated them shortly afterward. Griffin and Godwin sued Astro, Allied, and Sirva, alleging criminal conviction discrimination under Section 296.

The district court was tasked with interpreting whether Allied and Sirva were liable under Section 296 for the alleged unlawful terminations. Section 296(15) prohibits “any person, agency, bureau, corporation or association” from denying “employment to any individual by reason of his or having been convicted of one or more criminal offenses […] when such denial is in violation of the provisions of Article 23-A of the corrections law.” Section 296(6) prohibits any person from aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden under Section 296, including Section 296(15). Section 751 of Article 23-A states that Article 23-A applies to “any application by any person for […] employment at any public or private employer […] and to any […] employment held by any person.”  Plaintiffs argued that these provisions applied to Allied and Sirva.

The district court disagreed, holding that neither Allied nor Sirva was plaintiffs’ employer; therefore, the court found, Allied and Sirva could not have violated Section 296(15), and neither Sirva nor Allied was liable for aiding and abetting because neither had participated in firing plaintiffs. Plaintiffs appealed the dismissal of their claims against Allied and Sirva to the Second Circuit.

The Second Circuit, recognizing that the appeal presented unresolved questions under New York law, certified three questions to the New York Court of Appeals: (1) whether Section 296(15) limits liability to an aggrieved party’s “employer”; (2) how, if liability is limited to an “employer,” courts should determine whether an entity is an aggrieved party’s “employer”; and (3) whether Section 296(6) extends liability to an out-of-state nonemployer who aids or abets employment discrimination against individuals with prior criminal convictions. On May 4, 2017, the New York Court of Appeals answered these questions.

The Court of Appeals answered the first question in the affirmative, relying on Section 296(15)’s prohibition against discrimination “at any public or private employer.” The Court found that this prohibition only targeted employers. Additionally, the two exceptions in Article 23-A require “the public agency or private employer” to consider several factors; the Court found that this indicated that, since only employers need to consider the factors, only employers could violate Section 296(15).

In answering the second question, the Court relied on State Div. of Human Rights v. GTE Corp., where the Appellate Division identified four relevant factors to determine whether an entity is an employer: (1) the selection and engagement of the servant, (2) the payment of salary or wages, (3) the power of dismissal, and (4) the power of control of the servant’s conduct. The Court also stated that the greatest determinant is whether the entity had the “power of control.”

The Court answered the third question in the affirmative as well, following National Org. for Women v. State Div. of Human Rights, in which the court held that, although the nonemployer defendant did not “directly perpetuate” the discrimination, it had “aided and abetted” the discrimination condemned by Section 296. In National Org. for Women, a newspaper violated Section 296 by separating the “help wanted section” into two sections: jobs for men and jobs for women. The Court also held that Section 296(6) applied to out-of-state defendants due to the extraterritoriality provision, which states: “The provisions of this article shall apply as hereinafter provided to an act committed outside this state against a resident of this state […] if such act would constitute an unlawful discriminatory practice if committed within this state.” To prevail, the injured party “must plead and prove that the alleged discriminatory conduct had an impact in New York.”

On May 31, 2017, the Second Circuit, having considered the Court of Appeals’ decision, vacated the district court’s order and remanded the case back to the district court for further proceedings in line with the New York Court of Appeals’ decision.

If you have been denied employment or fired because of a criminal conviction, contact The Harman Firm, LLP.