2nd Circuit Certifies Three Questions to the NY Court of Appeals Regarding Liability Under the NYS Human Rights Law’s Provision Prohibiting Denial of Employment on the Basis of a Criminal Conviction

In Griffin v. Sirva Inc., No. 15-1307, 2016 WL 4524466 (2d Cir. Aug. 30, 2016), the U.S. Court of Appeals for the Second Circuit identified so-far unanswered questions relating to liability under Section 296(15) of the New York State Human Rights Law, which prohibits the denial of employment on the basis of a criminal conviction.

Plaintiffs are two former employees of Astro Moving and Storage Co., which provides moving/storage services as an agent on behalf of defendant Allied Van Lines. Defendant Sirva, Inc. is a holding company of Sirva Worldwide, which is the parent company of North American Van Lines, which in turn is the parent company of Allied Van Lines.

Plaintiffs “submitted consent forms for a background check in February 2011. When the background check was completed, the contractor that performed the check found that Griffin and Godwin had both been convicted of certain felony sexual offenses. Sometime thereafter, the President of Astro, Keith Verderber, terminated their employment.”

The district court granted summary judgment to defendants Sirva, Inc. and Allied Van Lines, reasoning that Section 296(15) applies only to the aggrieved party’s “employer.”

After surveying the legal landscape – including the background and purpose of NYS Human Rights Law § 296(15), the single/joint employer doctrines, and aiding-and-abetting liability under NYS Human Rights Law § 296(6) – the Second Circuit noted that “[t]he question of who may be held liable under Section 296(15) is an unresolved question of New York State law” and certified the following three questions to the New York State Court of Appeals:

(1) 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”?

(2) If Section 295(15) is limited to an aggrieved party’s “employer,” what is the scope of the term “employer” for these purposes, i.e. does it include an employer who is not the aggrieved party’s “direct employer,” but who, through an agency relationship or other means, exercises a significant level of control over the discrimination policies and practices of the aggrieved party’s “direct employer”?

(3) Does Section 296(6) of the New York State Human Rights Law, providing for aiding and abetting liability, apply to § 296(15) such that an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of § 296(15)?

The court was clear to note that “[i]n certifying these questions, we do not bind the Court of Appeals to the particular questions stated” and that “the [New York] Court of Appeals may expand these certified inquiries to address any further question of New York law as might be relevant to the particular circumstances presented in this appeal.”

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