New York City Expands Protections for Individuals with Criminal Records from Unlawful Discrimination

By Jack Newhouse

On October 27, 2015, New York City passed the Fair Chance Act, taking the next step in protecting individuals working in New York’s five boroughs from discrimination based on a prior criminal record. Since 1976, Article 23-A of the New York Corrections Law has prohibited employers within the State of New York from considering prior criminal records when making hiring decisions unless the employer can (1) draw a direct relationship between the applicant’s criminal record and the prospective job, or (2) show that employing the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

In determining whether there is a direct relationship between the applicant’s criminal record and prospective job, an employer is mandated by law to analyze the following factors:

  • New York public policy encourages the employment of people with criminal records;
  • The specific duties and responsibilities of the prospective job;
  • The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;
  • The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;
  • The age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction history;
  • Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct;
  • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

Article 23-A, however, does not prohibit an employer from inquiring into an applicant’s criminal record during the hiring process. New York City’s Committee on Civil Rights recognized that many applicants were still being asked about their prior criminal records before completing the hiring process, and many employers were not properly weighing the factors laid out in Article 23-A when making hiring decisions. To combat this issue, New York City passed the Fair Chance Act.

The Fair Chance Act expands on the protections provided in Article 23-A by prohibiting employers, not only from considering, but also inquiring into an applicant’s criminal history until after extending a conditional offer of employment. Prohibited inquiries include asking applicants directly about their criminal history at an interview or on an employment application in addition to independent inquiries made by the employer, such as criminal background checks. Only after an employer extends a conditional offer of employment to an applicant, may the employer inquire into the applicant’s criminal history.  Then, if an employer elects to withdraw the conditional offer of employment, the employer must (1) disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history, (2) share with the applicant a written copy of its analysis of the Article 23-A factors, and (3) allow the applicant at least three business days to respond to the employer’s concerns.

Whether the expanded protections under the Fair Chance Act are successful in protecting against discrimination remains to be seen. Edward Figueroa, program manager of The Osborne Association’s Career Center in New York, believes that “the Fair Chance Act offers employers the opportunity to consider a broader range of candidates and can evaluate those candidates on things that are really important, on the merits of a person’s ability to perform the tasks and abilities set forth by the employer." [1]

Since the passing of the Fair Chance Act, Mr. Figueroa does not know of one person who has received a conditional offer of employment withdrawn due to an applicant’s prior criminal record. Mr. Figueroa, however, has also observed companies operating in New York City that still inquire into an applicant’s prior criminal record on their employment applications.  Mr. Figueroa’s observation highlights the critical role of the New York City Commission on Human Rights, the administrative agency tasked with enforcing the Fair Chance Act, in establishing the success of the law. If the Fair Chance Act is not properly enforced, then employers may simply ignore its requirements.

Perhaps it is too early to tell what the full impact the Fair Chance Act will be, but it is certainly a step in the right direction for ensuring that applicants with criminal histories are evaluated based on their respective qualifications for the position.

For more information, please visit: http://www.nyc.gov/html/cchr/downloads/pdf/FCA-InterpretiveGuide-112015.pd 

[1] The Osborne Association is a non-profit dedicated to helping previously incarcerated men and women develop skills and training for entering and advancing in the job market.

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