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April 2011

New York High Court Clarifies the Examination an Employer Must Conduct Before Denying Employment to an Ex-Convict

In a decision certain to resonate with all New York employers, the state's highest court just made clear that it would strictly enforce a law barring job discrimination against an applicant with a checkered past.  Ruling 5-2 in Matter of Acosta v. New York City Dep't of Educ., 2011 NY Slip Op. 2073 (2011), the Court of Appeals held that an employer must carefully examine eight statutory factors when contemplating the denial of employment to an applicant with a criminal conviction.  Accordingly, the high court affirmed the reinstatement of a criminal history discrimination claim against the New York City Department of Education ("DOE"), holding that DOE's denial of employment-related security clearance was arbitrary and capricious.

Enacted by the Legislature in 1976, New York's Correction Law § 752 prohibits an employer from denying employment to an applicant with a criminal past.  The statute, however, contains two exceptions.  The first is where there is a "direct relationship" between the applicant's criminal offense and the employment sought.  The second is where employment of the applicant "would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

An employer who seeks to rely on either exception must first consider the eight factors enumerated in Correction Law § 753(1), which include: the specific duties and responsibilities necessarily related to the employment sought, and the bearing, if any, the criminal offense(s) will have on the applicant's fitness or ability to perform them; the seriousness of the offense(s); the age of the person at the time of the offense(s); the time elapsed since the occurrence of the offense(s); any evidence of rehabilitation or good conduct since then; and the legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.

In Matter of Acosta, petitioner Madeline Acosta was convicted of felony robbery when she was seventeen years old.  Acosta served three years in prison and was granted parole in 1996.  After her release, she earned a bachelor's degree, volunteered with an organization assisting inmates with developing skills to help them reintegrate into society, and worked in positions of responsibility at two law firms.

More than nine years after her release, Acosta took a part-time position at a not-for-profit private organization providing pre-school special education services.  It was primarily a clerical position, with no responsibility for providing any instruction to the students.  The entity received funding from the DOE, and all employees were thus required to obtain DOE security clearance.  During the clearance process, DOE notified Acosta that she would be interviewed because of her criminal history.  Acosta was advised that she could provide references, identify achievements before or after her conviction, and submit a written personal statement explaining the events and circumstances surrounding her conviction.  After providing voluminous materials, she was told that only one of the three decision-makers would be interviewing her, and that only her personal statement would be reviewed, not the other documents she submitted, because they did not have the time to do so.  During the short interview, the investigator asked no questions about Acosta's conviction, her prior employment, or her current job duties at the not-for-profit.

The DOE thereafter denied Acosta's application for a security clearance, based on the "unreasonable risk" exception to Correction Law § 752.  The DOE concluded that Acosta's robbery conviction posed "an unreasonable risk to the safety and welfare of the school community."  Id. at 8.  Faced with the denial of a security clearance, the not-for-profit had no choice but to terminate Acosta's employment.

Based on the above facts, the Court of Appeals held that the DOE failed to comply with the requirements of the Correction Law.  The Court based its decision on the "plain [fact] that the DOE failed to consider all of the factors in making its determination as to whether the unreasonable risk exception applied ?, rendering its denial of that application arbitrary and capricious."  Id. at 9.  In particular, the Court read Correction Law § 753 as obligating employers to review and consider all documentation provided by an applicant relating to his or her rehabilitation and good conduct, and DOE's failure to look at anything other than Acosta's personal statement was tantamount to a "pro forma denial of [Acosta's] application on the basis of her prior criminal conviction."  Id. at 11.  Without considering carefully all of the eight factors in Correction Law § 753, an employer cannot invoke either exception to bar employment based on criminal history.

The lesson from Acosta?  Employers who want to survive judicial scrutiny of criminal conviction-based employment decisions must be prepared to demonstrate that they carefully weighed all of the eight factors in Correction Law § 753 and rendered a rationally-based decision.  Although the Court's decision does not demonstrate how to prove compliance with Correction Law § 752, it would be wise for the employer to create documentation evincing its application of the eight factors, such as an internal memorandum itemizing the documents reviewed and explaining how the decision was rendered in the context of the eight factors.  A court would be hard-pressed to reject an employer's decision as arbitrary and capricious if it was presented with such comprehensive documentation.

Employment Law

Employment Law