Hunton Employment & Labor Perspectives

At the request of the U. S. Court of Appeals for the Second Circuit, the New York Court of Appeals recently answered several questions regarding liability under the New York Human Rights Law Section 296(15)—which prohibits denying employment on the basis of criminal convictions when doing so violates New York Correction Law Article 23-A—and Section 296(6)—which prohibits aiding and abetting such discrimination.

In Griffin v. Sirva, Inc., 2017 NY Slip Op 03557, after some reformulation, the Court of Appeals addressed the following:

• Does Section 296(15) of the New York State Human Rights Law, prohibiting discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party’s “employer”?
• If yes, how should courts determine whether an entity is the aggrieved party’s “employer” for purposes of a claim under Section 296(15)?
• Whether Section 296(6) extends liability to an out-of-state non-employer who aids or abets employment discrimination against individuals with a prior criminal conviction.

The Court answered (1) in the affirmative – only the aggrieved party’s employer can be liable for discrimination on the basis of a criminal conviction under Section 296(15).

In response to (2), the Court held that, to determine who the employer is, courts must look to who had the right to control the employee and, specifically, who was responsible for:  (i) the selection and engagement of the employee; (ii) the payment of the employee’s wages; (iii) dismissing the employee; and (iv) controlling the employee’s conduct, with the greatest emphasis on the control of conduct.

Lastly, in response to (3), the Court held that an out-of-state non-employer could be liable as an aider and abettor under Section 296(6).  Section 296(6) provides that it is unlawful “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.”  The Court found that section extended beyond joint employers and should be construed broadly.  The Court noted that the article applies to “an act committed outside this state against a resident of [New York] . . . if such act would constitute an unlawful discriminatory practice if committed within [New York],” N.Y. Exec. Law § 298-a(1).