New York Court Considers Aider and Abettor Liability in Criminal History Discrimination Claim

New York City extends protections against employment discrimination to individuals with criminal records, who often find themselves excluded from job opportunities. New York City employment discrimination attorneys may draw upon city and state law in support of these claims. A lawsuit that worked its way through multiple New York courts alleged aider and abettor liability under state law against a company that hired the plaintiffs’ employer as an independent contractor. The case began in a Brooklyn federal district court in 2011 and returned there in 2018 after rulings from both the Second Circuit Court of Appeals and the New York Court of Appeals. The district judge ultimately ruled against the plaintiffs in their aider and abettor claims in Griffin v. Sirva, Inc., 291 F.Supp.3d 245 (E.D.N.Y. 2018), but the ruling offers a useful overview of how such a claim might work.

Both the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) generally prohibit discriminating against a job applicant on the basis of criminal history unless they follow specific provisions found elsewhere in state law. N.Y.C. Admin. Code § 8-107(10)(a)N.Y. Exec. L. § 296(15). Article 23-A of the New York Corrections Law requires employers to consider factors like the severity of the offense, the amount of time that has elapsed since the offense and conviction, and the extent to which the offense has any bearing on the position sought by the applicant. N.Y. Corr. L. § 753(1). Aiding and abetting a violation of either statute is considered a distinct unlawful discriminatory practice. N.Y.C. Admin. Code § 8-107(6), N.Y. Exec. L. § 296(6).

The plaintiffs in Griffin were employed by a company that “provides local warehouse services and transportation services.” Griffin, 291 F.Supp.3d at 248. The defendant hired the company as an independent contractor. The contract required the plaintiff’s employer to comply with a “Certified Labor Program,” which reportedly involved criminal background checks that automatically excluded people with certain convictions. Id. The plaintiffs alleged that they were terminated by their employer after they did not pass this background check. They sued their employer and the defendant. They alleged that the defendant was a joint employer liable for aiding and abetting under the NYSHRL.

In 2014, the district court granted the defendant’s motion for summary judgment, finding that it was not a joint employer and therefore was not liable under the NYSHRL. The Second Circuit sent several certified questions to the New York Court of Appeals about joint employment. 835 F.3d 283 (2d Cir. 2016). The state’s high court provided a broad definition of “employer” that could include the defendant. 29 N.Y.3d 174 (2017). This led the Second Circuit to vacate the summary judgment ruling. 858 F.3d 69 (2d Cir. 2017).

On remand, the district court again ruled against the plaintiffs, this time based on the outcome of the plaintiffs’ claim against their employer. Those claims went to a jury in late 2014. The jury found for the employer. The court ruled that “the plaintiff must first establish the existence of a primary violation of the NYSHRL by an employer or principal” before they can establish that another entity is liable for aiding and abetting. Griffin, 291 F.Supp.3d at 254.

The experienced and skilled employment discrimination attorneys at Phillips & Associates represent New York City job seekers and employees. Please contact us at (866) 229-9441 or online today to schedule a free and confidential consultation to discuss your case.

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