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NYS Division of Human Rights Provides A Reminder about Criminal Conviction Discrimination

Writer's picture: Joseph DierJoseph Dier

Employers would do well to stay abreast of NYS Division of Human Rights (DHR) decisions when they are issued, albeit infrequently. They provide a glimpse into DHR’s thought process and help guide employers’ actions moving forward.  Here, we will discuss Sow v. Unipark Services Corp, which was issued on October 7, 2024.


At issue was whether the complainant was discriminated against because of his criminal conviction history.  In general, when determining whether to deny employment to someone with a criminal history, the employer must consider the factors outlined in New York Correction Law sections 752 and 753, also known as performing an “article 23-A analysis.”  These factors include the relationship between the conviction and the job, whether hiring the applicant would unreasonably risk the safety of persons or property, the specific job duties, time elapsed since the conviction, the person’s age when convicted, and the seriousness of the crime.  These factors must be weighed against any information submitted by the employee showing rehabilitation or good conduct, and New York’s policy to encourage hiring persons convicted of crimes.  In sum, an employer cannot categorically deny all applicants convicted of a crime, or even specific crimes (e.g., employers cannot automatically deny applicants who have a murder conviction; they still need to go through the full analysis).


In Sow, DHR determined that there was no credible evidence that the complainant’s termination was related to the employer’s knowledge of his conviction history.  Instead, the evidence showed that he was terminated because of a complaint received from their client and it appeared that he gave false employment references.  Therefore, the complaint was dismissed.  A few months prior to Sow, DHR dismissed a similar claim because the employment decision was based on the complainant’s falsehoods during hiring and not the criminal history itself.


These decisions provide a helpful reminder that DHR will closely scrutinize employers’ decisions regarding applicants or employees with criminal histories.  Employers must engage in the article 23-A analysis to provide a layer of protection from liability.  You can look at other examples (here and here) where DHR found that an analysis was adequate, and compare it to a case where the highest court in New York found the analysis inadequate.


It should be noted that courts and DHR have held that an employer is not necessarily required to have a full written analysis in order to defend itself.  However, doing so is highly recommended as it provides a contemporaneous document showing what was considered, which is entitled to much more weight than an after-the-fact verbal explanation from an employer that could be viewed as self-serving.


Dier Law is available to guide employers in this area of law or conduct article 23-A analyses on their behalf.


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