From McClarence v. International Union of Operating Engineers Local Union, 2017 WL 3887883, at *2 (E.D.N.Y., 2017):
In this case, McClarence’s complaint fails to state a claim under Title VII. McClarence has asserted a bare-bones claim that he was discriminated against on the basis of race or color, but has not identified himself as a member of a protected class based on race, nor presented any facts indicating that he was discriminated against on the basis of his membership in a protected class. Indeed, the only explanations he provides for why he was terminated or failed to be reinstated to union membership are the result of a drug test and a past criminal conviction. (Compl. at 4-5.) Neither of these factors indicate membership in a suspect class that is protected under federal anti-discrimination laws. Title VII and the Americans with Disabilities Act do not protect against employment discrimination based upon a prior conviction.2 See McCoy v. People Care Inc., No. 11-CV-2689 (RA), 2013 WL 5313433, at *5 (S.D.N.Y. Sept. 20, 2013); Idlisan v. N.Y.S. Dep’t of Taxation & Fin., No. 12-CV-1787 (MAD) (CFH), 2013 WL 2898050, at *4 (N.D.N.Y. June 13, 2013); Tubbs v. N.Y.C. Parks Dep’t (JTP) Parks Opportunity Arsenal W., No. 12-CV-3322 (CBA) (VMS), 2012 WL 4838439, at *1 (E.D.N.Y. Oct. 10, 2012); see also 42 U.S.C. §§ 12112-12117. Moreover, “courts consistently conclude that an employee’s failure of a drug test constitutes a legitimate nondiscriminatory reason for terminating the employee.”
The court noted that while federal law does not prohibit discrimination based on a prior conviction, such a claim may be asserted under the New York State Human Rights Law.