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Erica Ruth Sanders Discusses Criminal Conviction Discrimination for Lawyer Monthly

Erica Ruth Sanders Discusses Criminal Conviction Discrimination for Lawyer Monthly

Erica Ruth Sanders, a New York employment attorney at Phillips & Associates recently wrote an article on criminal conviction discrimination in and around New York City that appeared in Lawyer Monthly. Criminal conviction discrimination, also known as criminal history discrimination occurs when someone is denied a job or fired due to a criminal record.

Ms. Sanders is a New York employment attorney at our White Plains office. She wrote about whether a company can refuse to hire you or can terminate you if it finds out about your criminal history or criminal record. In her article, Ms. Sanders explained that almost one out of three Americans of working age have a criminal conviction. Therefore, a significant percentage of the population faces the possibility of being denied a job or promotion, or another adverse employment decision, based on their criminal record.

What Counts as Criminal Conviction Discrimination?

There are federal, state, and local laws that affect whether you are protected against employment discrimination on the basis of your criminal history. For example, under Article 23-A of the New York Corrections Law, a job application is not supposed to be denied when you have a criminal conviction because your prospective employer thinks that the existence of a conviction means that you are immoral. However, there are crucial exceptions to this general rule. Your employer can legally deny you a job because of your conviction if there is a direct connection between the crime and the nature of the job. However, there needs to be an analysis done regarding the connection between the conviction and the job. Generally, you should not be automatically denied a job or fired for disclosing a criminal record. If you are denied employment shortly after disclosing a criminal conviction, you should contact an attorney to understand your rights. Please note, employers are allowed to reject job applicants who lie about their convictions based on their lies.

Federal Laws

The Equal Employment Opportunity Commission (EEOC) enforces the federal Title VII of the Civil Rights Act. Under the EEOC guidance, an employer’s use of an individual’s criminal history in making job decisions can sometimes violate Title VII’s prohibition on race or national origin discrimination. For example, if an employer treats criminal history information differently for white and black employees, this may be racial discrimination. Even a neutral policy that disproportionately affects people with protected characteristics under Title VII, if it is not job-related or consistent with business necessity, may give rise to disparate impact liability.

The EEOC has recommended that employers create a screening program that considers the nature of the crime, how much time has passed since the crime, and the nature of the job when looking at the criminal backgrounds of job applicants.

The Fair Credit Reporting Act also affects criminal conviction discrimination. Employers are only allowed to use background checks related to criminal (or credit) history for employment purposes. However, an employer needs permission to order the background check and needs to let you know that it intends to take an adverse action based on some part of the report before it orders the check.

State Laws

Under the New York State Corrections Law, an employer can withhold or take back a job offer if a conviction has a direct relationship to the nature of the job or presents an unreasonable safety risk. The analysis that employers need to perform to decide whether there is a direct relationship or danger is fact-specific. Employers need to consider public policy, the job duties, the relationship between the conviction and the job duties, timing, age, severity, rehabilitation, and safety. If an employer decides to withhold or rescind an offer because of this analysis, the job applicant can ask for a statement that explains the employer’s reasoning.

The New York State Human Rights Law also provides certain protections against criminal conviction discrimination. Under the state law, an employer is not allowed to ask job applicants about arrests, accusations, or charges if there was no actual conviction. Employers are allowed to ask about pending criminal charges while the hiring process is underway.

Local Laws

The New York City Fair Chance Act is a law specific to New York City, under which employers are not allowed to ask about prior criminal convictions until after they make a conditional employment offer. Once they make a conditional offer, employers can ask about criminal conviction history and can take back the offer after an eight-factor test is performed. The purpose of this law is to prevent employers from rejecting a job candidate based on their criminal history while hiding themselves behind pretextual reasons for rejecting the job candidate. Other procedures must also be followed by employers.

Fight Back Against Criminal Conviction Discrimination

If you believe that you have faced criminal conviction discrimination in the workplace, you should consult the accomplished employment litigators at Phillips & Associates. Call us at (212) 248-7431 or contact us through our online form. We handle employment cases in Brooklyn, Manhattan, Queens, and the Bronx, as well as Westchester County, Long Island, New Jersey, and Pennsylvania.

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