Termination Did Not Violate Arrest/Conviction Discrimination Statutes, Court Finds

In Hodge v. New York City Transit Authority, No. 11006, 11007, 159612/18, 655191/18, 2020 N.Y. Slip Op. 01008, 2020 WL 716782 (N.Y.A.D. 1 Dept., Feb. 13, 2020), the Appellate Division, First Department, upheld the termination of petitioner’s employment.

From the decision:

The termination of petitioner Hodge’s employment based on conduct that, if proven in court, would have constituted a felony was not against public policy (see Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL–CIO, 99 N.Y.2d 1, 7 [2002]). Correction Law article 23–A provides that “no employment … held by an individual … shall be … acted upon adversely by reason of the individual’s having been previously convicted of one or more criminal offenses” (Correction Law § 752) where the conviction “preceded such employment” (Correction Law § 751). The conviction at issue occurred during Hodge’s employment and was, therefore, not covered by the referenced Correction Law[.]

As to the relevant sections of the New York City Human Rights Law, the court explained:

Similarly, the New York City Human Rights Law (N.Y.CHRL) makes it an unlawful discriminatory practice to “take adverse action against any employee by reason of such … employee having been convicted of one or more criminal offenses … when such … adverse action is in violation of the provisions of article 23–a of the correction law” (Administrative Code of City of N.Y. § 8–107[10][a] ).

Nor does Administrative Code § 8–107(11)(a) apply to this matter. Section 8–107(11)(a) prevents adverse employment actions based on arrests or criminal accusations when “in violation of subdivision 16 of section 296 … of the executive law.” Executive Law § 296(16) “ ‘simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law’ ” (Matter of Joseph M. [New York City Bd. of Educ.], 82 N.Y.2d 128, 130 [1993]). Hodge pleaded guilty based upon the offending acts. Thus they were more than accusations.