On May 4, 2017, the New York State Court of Appeals issued its decision in Griffin v. Sirva, Inc., ruling that non-employer third parties can be held liable under the New York State Human Rights Law when they impose discriminatory criminal record hiring criteria on direct employers. The decision – which confirms that the Human Rights Law’s mandate extends to companies or people who aid and abet discrimination as well as employers who directly commit discriminatory acts – is a major victory for New Yorkers with criminal conviction histories.
Griffin involved a nationwide moving company, Allied Van Lines, Inc., that contractually required one of its local moving company agents, Astro Moving and Storage Co., Inc., to automatically bar from Astro’s moving jobs individuals with certain criminal convictions. As a result, Astro (the direct employer) terminated two Astro employees (the plaintiffs) after background checks reported that they had a past history of those specified convictions. Allied’s “automatic ban” rule was contrary to New York’s laws, which mandate that employers undertake an individualized process to consider important factors about an applicant’s past criminal conviction before refusing employment for that reason.
On behalf of several organizations committed to protecting the employment rights of individuals with criminal records, the Legal Action Center, the Community Service Society of New York, and NELA/NY filed an amicus brief in this case. Amici asked the Court to confirm that third parties to employment relationships can be liable under the NYS Human Rights Law when they impose discriminatory conditions – like felony bans – on direct employers.
While the Court did not agree with amici on the scope of the specific sections of New York law addressing employment discrimination on the basis of conviction record, its ruling is nevertheless a significant advance for persons who suffer such discrimination, when it is imposed, as in this case, by a third party. For such persons, the Griffin decision is a signal victory, confirming not only that aiding and abetting liability exists under the NYS Human Rights Law, but also clarifying that this liability extends to local and out-of-state third parties even if they have no employment relationship with the plaintiff. The decision also confirms that the Court’s 1974 ruling in National Organization for Women v. State Division of Human Rights – which had applied the aiding and abetting provision of the NYS Human Rights Law to a newspaper company with no employment relationship with the plaintiff after it ran separate employment help wanted listings for women and men – remains good law. The Court ruled that “aiding and abetting” liability extends to “persons and entities beyond joint employers” and “should be construed broadly.” In particular, the Court ruled, aiding and abetting liability was not limited to “employers” but instead to “all persons, no matter what their status, who aid and abet” discriminatory practices. Significantly in today’s geographically diverse workplaces, the Court also applied “aiding and abetting” liability to out of state companies. It is now clear that companies like Allied can face “aiding and abetting” liability if they impose hiring rules that are contrary to the NYS Human Rights Law, such as the discriminatory criminal record criteria at issue in the Griffin case.
“The aiding and abetting ruling is a big victory for individuals with criminal records. It states loudly and clearly that non-employer entities can be liable when they impose discriminatory criminal record criteria on direct employers,” said Monica Welby, Senior Staff Attorney at the Legal Action Center.
“Our state’s highest court has now made it abundantly clear: companies that exert control over terms of the employment relationship which result in criminal records-based discrimination are as liable for violating the NYS Human Rights Law as are direct employers. In today’s ever-changing economy, where new forms of employment relationships emerge all the time, this is crucially important protection for workers with conviction histories,” said Judy Whiting, General Counsel at the Community Service Society.
“The court’s decision in Griffin confirms an important remedy for persons who suffer workplace discrimination,” said NYC attorney Deborah H. Karpatkin, counsel for NELA/NY. “Griffin makes clear that those who aid and abet discrimination, even if not technically an ‘employer,’ are not beyond the reach of the NYS Human Rights Law. Griffin also mandates that the Human Rights Law ‘should be construed broadly,’ a strong statement of judicial interpretation that will benefit plaintiffs in future cases.”
About the Legal Action Center: Established in 1973, the Legal Action Center is the only non-profit law and policy organization in the United States whose sole mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas.
About the Community Service Society: For more than 170 years, the Community Service Society of New York has been the leading voice on behalf of low-income New Yorkers and continues to advocate for their economic security in the nation’s largest city. CSS responds to urgent, contemporary challenges with applied research, advocacy, litigation and innovative program models that help New Yorkers achieve a better quality of life and promote a more prosperous city.
About NELA/NY: NELA/NY is the New York affiliate of the National Employment Lawyers Association (“NELA”), the national bar association for lawyers who represent employees. NELA/NY and its members promote the workplace rights of individual employees through litigation, advocacy, legislation, a legal referral service, and other activities, with an emphasis on New York’s employment laws. NELA/NY has approximately 350 members.