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Hiring Discrimination: A Fair Chance for Applicants with a Criminal History

December 11th, 2015 Christopher Davis

Issues involving discrimination are some of the most common in employment law. Employment attorneys in New York City frequently see cases involving prejudice and unfair treatment in the workplace, often stemming from discrimination based on race, sex, ethnicity, or national origin. Employees can be penalized or even fired as a result of discriminatory attitudes. However, in some cases, discrimination can occur before an employee is even hired—and discrimination in the hiring process is illegal, just as workplace discrimination is.

Though hiring discrimination based on characteristics such as race or age might be more evident or more easily recognized, less obvious sources of discrimination are equally problematic—and sometimes even more so. In particular, job applicants in New York City who have a criminal record often struggle to find employment—no matter what their charges or how long ago they committed the crime. Employers may feel more justified in denying a position based on an applicant’s criminal history than on other personal characteristics, and sometimes even reject such candidates outright. However, this reality does not change the fact that it’s illegal to be denied a job on the basis of your criminal record.

Recognizing a damaging trend in hiring discrimination for applicants with a criminal history, officials in New York City passed a new law in October 2015, called “The Fair Chance Act,” which adds extra protections for candidates with a criminal record when they begin to seek a new job. Before the law was enacted, New York State law already mandated that employers could not use unrelated convictions in determining an applicant’s suitability for a position. But nothing prevented employers from refusing to consider applicants with any type of criminal history, regardless of their conviction’s relevance to the position sought. The Fair Chance Act was implemented in an effort to remedy criminal record discrimination and give qualified applicants—as the name suggests—a “fair chance” at gainful employment.

As of October 27, 2015, thanks to the Fair Chance Act, employers in New York City are banned from asking about an individual’s criminal history on job applications or during interviews. If you, as a new job applicant, encounter any questions that explicitly ask, or even simply hint, about your criminal history, be forewarned—this is illegal! You are not obligated to disclose your criminal history status at any point during the application process. The Fair Chance Act also bans job advertisements which suggest that those with criminal records are not welcome to apply, ultimately attempting to remove the discourse of criminality from the hiring process entirely. These efforts have meaningful impact, not only practically, but psychologically, for individuals who are stigmatized for their criminal histories.

Further, the Fair Chance Act dictates that an employer in New York City can ask about your criminal record or run a background check only after you have already been issued a conditional job offer. If your offer is then revoked, and employment is denied for reasons based on your criminal record, the employer must issue a statement in writing explaining the decision. Their reasoning must be justified, meaning that they must demonstrate how your criminal record explicitly relates to your job duties or creates security concerns. If the employer fails to do this, their actions are still considered illegal criminal history discrimination. Even if they do provide adequate reasoning, employers are still obligated to hold the job position open for three days to give you an opportunity to respond, discuss, or contest the issue.’

According to the Fair Chance Act’s website, New York City is the latest addition to a growing number of states, cities, and counties that have instituted fair chance policies. Such laws are sometimes also called “Ban the Box” initiatives, since they outlaw the checkbox on job applications that is meant to indicate whether a candidate has any criminal convictions. In New York, the new law applies to all employers with four or more employees, and, in some states, the policy is expanded to all public and private employers. In New York City specifically, companies must follow the anti-discrimination policy not only when hiring employees, but also when firing them, and when demoting or promoting them. The law adds new protections, but also assists employers in complying with existing law, reducing legal liability. The Fair Chance Act is endorsed as a “best practice” by the U.S. Equal Employment Opportunity Commission, as well as the Department of Labor’s Office of Federal Contract Compliance Programs, for the steps it takes to combat discrimination while simultaneously protecting employers.

While only 20% of states in the U.S. have enacted statewide fair chance policies, awareness is expanding, particularly as more people begin to recognize just how damaging criminal history discrimination can be. More than five million workers in New York have some type of criminal record—meaning that about a quarter of the state’s population could potentially face hiring discrimination. The NYC Fair Chance Act simply seeks to “remove barriers to success for people who are qualified to work.” The benefits of the law are manifold: Not only does employment correlate with lower rates of recidivism (meaning that those with a criminal history are much less likely to commit additional crimes), but when the option to automatically disregard applicants with criminal records is removed, employers open themselves up to a much greater variety of qualified candidates. Ultimately, the Fair Chance Act ensures that “all public and private employers are considering applicants based on their skills, experience, and qualifications before weighing whether their conviction history is relevant.”

If you are a job applicant with a criminal record, and have been denied employment due to your criminal history, the Working Solutions Law Firm can help. The Fair Chance Act prevents employers from discriminating against you at any point in the employment process—not only during hiring interviews or in job applications, but also during reviews for promotions or demotions. If you have any doubts as to whether you might have a claim, our attorneys will be glad to consult with you. You can contact our office at (646) 430-7930, or fill out our contact form here. As always, we’d be happy to advise you and provide you with a free consultation.