Court of Appeals Clarifies Liability Under the NYS Human Rights Law Regarding Discrimination Based on Criminal Conviction

In Griffin v. Sirva, Inc., No. 35, 2017 WL 1712423 (N.Y. May 4, 2017), the New York Court of Appeals addressed three certified questions – posed to it by the U.S. Court of Appeals for the Second Circuit[1]Griffin v. Sirva Inc., 835 F3d 283 (2d Cir. 2016) – regarding liability under the New York State Human Rights Law (and the Correction Law, which it incorporates by reference) for discrimination based on a prior conviction, as well as “aiding and abetting” liability under the statute.

The court answered/addressed the following three certified questions:

Question 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’?”

  • Answer: Yes. NYSHRL 296(15) “limits liability to a public or private employer. No room exists under either the Correction Law or section 296(15) to hold a nonemployer liable for employment discrimination.”

Question 2: “If Section 296(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’?”

The court reformulated this question as: “[i]f Section 296(15) is limited [to an employer,] how should courts determine whether an entity is the aggrieved party’s ‘employer’ for the purposes of a claim under Section 296(15)?”

  • Answer: “[C]ommon-law principles, as discussed in GTE, determine who may be liable as an employer under section 296(15) of the Human Rights Law, with greatest emphasis placed on the alleged employer’s power “to order and control” the employee in his or her performance of work.”

Question 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 reformulated this question to ask “whether section 296(6) extends liability to an out-of-state nonemployer who aids or abets employment discrimination against individuals with a prior criminal conviction.”

  • Answer: Yes. “Section 296(6) extends liability to persons and entities beyond joint employers, and this provision should be construed broadly. Section 296(6) applies to any “person.” Unlike section 296(15), nothing in the statutory language or legislative history limits the reach of this provision to employers. Indeed, the purpose of subdivision (6) was “to bring within the orbit of the bill all persons, no matter what their status, who aid or abet any of the forbidden practices of discrimination or who attempt to do so,” as well as “to furnish protection to all persons, whether employers, labor organizations or employment agencies, who find themselves subjected from any source to compulsion or coercion to adopt any forbidden employment practices. In accord with that purpose, we have previously applied section 296(6) to a newspaper company that had no employment relationship with the plaintiff.”
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