New York's Highest Court Clarifies Who Can Be Liable For Discrimination Based On Criminal History

Author:Mrs Pamela Devata, Robert T. Szyba and Stacey L. Blecher
Profession:Seyfarth Shaw LLP
 
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Seyfarth Synopsis: On May 4, 2017, New York's highest court, the Court of Appeals, held that  the New York State Human Rights Law ("NYSHRL") prohibits employers from discriminating on the basis of criminal conviction history. Entities that are not direct employers may also be liable, however only for aiding and abetting a violation of the NYSHRL.

In Griffin v. Sirva, Inc., the U.S. Court of Appeals for the Second Circuit ("Second Circuit") posed three questions to the New York Court of Appeals ("Court of Appeals"), New York's highest court, regarding the appropriate interpretation of New York state law, the NYSHRL.  Specifically, the Court of Appeals was asked to determine whether (1) Section 296(15) of the NYSHRL, which prohibits discrimination against individuals with prior criminal convictions, is limited to a party's "employer"; (2) if so, is an "employer" only a "direct employer," or can the coverage extend to other related entities; and (3) does Section 296(6), which provides for aiding and abetting liability, apply to Section 296(15) to impose liability on out-of-state entities that may have a connection to an in-state employer?  

As background, the direct employer in the case was Astro Moving and Storage Co., who was a contractor for Allied Van Lines.  Plaintiffs had convictions for sex crimes with minors, which disqualified them from working for Allied, and Astro terminated their employment because they could not perform services for Allied.  Plaintiffs sued Astro, Allied, and Sirva, Inc. (Allied's parent).  Among other claims, Plaintiffs alleged discrimination due to their criminal conviction histories, as prohibited by Section 296(15) of the NYSHRL.  As is most relevant here, they sued Allied (which was not their direct employer).  Thus, since the interpretation of the NYSHRL had not been resolved on this point, the Second Circuit certified its questions to the Court of Appeals.

In its response, the Court of Appeals held definitively that Section 296(15) of the NYSHRL is limited to direct employers.  Although the statutory text states that "any person" is prohibited from discriminating, the Court nevertheless found that this language was contextually designed to target direct employers.

With respect to the second question, the Court of Appeals clarified who the NYSHRL considers an "employer."  To make the determination, the Court of Appeals turned to the common law test for determining the employer-employee relationship, as enunciated...

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