Relates to the manner in which certain provisions of the correction law are enforced

Summary of provisions

Section one of the bill amends the correction law to establish that the provisions of Article 23-A of the· correction law are enforceable by the Division of Human Rights when a person is illegally discriminated against by a public employer. Section two of the bill is the effective date.

Justification

New York State's Human Rights Law §297 enumerates the remedies available to a person with a claim of unlawful discrimination. This provision states that, "Any person (emphasis added) claiming to be aggrieved by an unlawful discriminatory practice may, by himself or herself- make, sign and file with the division a verified complaint." Inexplicably, under a separate provision of New York State law, one class of persons, those discriminated against by public agencies on the basis of their criminal record, have their remedies limited. Under Section 755 of the Correction Law, individuals denied employment by a public agency because of their criminal record have only one remedy available to them - an Article 78 proceeding in state court. However, individuals wrongly denied employment by a private employer are able to file a complaint with the Division of Human Rights. There is no reason that only people who are discriminated against by a public agency because of their criminal record should be limited to fewer options than those complaining about discrimination by private employers. Thus, this bill amends Section 755 of the Correction Law to give persons who suffer discrimination based on a criminal record by a public employer access to the same enforcement mechanisms as those discriminated against by private employers.

There are many legal and policy reasons why persons who experience criminal-records based discrimination by public employers should have access to the same enforcement mechanisms available to others who experience discrimination by private employers:

* Article 78 proceedings cost the State significant amounts of time and money through the use of court personnel (judges, court officers, clerks, etc.), Attorney General and Corporation Counsel resources and time, as well as time spent by the petitioner drafting the appeal and appearing in court. By contrast, the Division of Human Rights and the Commission on Human Rights have streamlined procedures and mechanisms in place as well as expertise in evaluating discrimination claims. Processing criminal records based discrimination claims administratively, which many individuals would choose to do because it does not require them to obtain legal counsel, will achieve speedy results at less cost to everyone.

* Individuals only have four months to file an Article 78 if they are discriminated against by a public employer. This period is so brief that it has usually passed before many claimants even learn the option of an

Article 78 exists, or before they are able to secure legal representation, which most individuals will need in order to file these cases.

* Even when a claimant does successfully file and win an Article' 78, it is a Pyrrhic victory - the job in question is usually not available by the time the decision is rendered (usually more than a year after the initial job denial) and the agency reconsiders the employment application. By contrast, the Division of Human Rights and the Commission on Human Rights are able to move quickly in evaluating discrimination complaints and working towards settlement.

* Singling out a protected class of persons who are disproportionately from communities of color and limiting the legal remedies available to them may well violate Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, which prohibits private employers and state and local governments from discriminating in employment based upon race, color, gender, national origin, or religion. The Equal Employment Opportunity Commission (EEOC) has ruled that employment policies (which could include statutes that provide legal remedies) that exclude individuals based upon their criminal history may violate the Civil Rights Act because such policies disproportionately impact minorities, who are arrested and convicted at a significantly higher rate than their percentage in the population.

Amending Article 755 of the Correction Law will mean that individuals who are discriminated against by a public agency as a result of their criminal record will be able to obtain real relief for the discrimination they have suffered. It would also extend equal protection to all persons who suffer from discrimination and would save the state time and resources at a time when resources need to be saved.

Legislative history

2009-10: S.4687/A.8012 (Jeffries) - Vetoed Memo. 6756

Fiscal implications

There may be some small increase in administrative costs to the Division of Human Rights as a result of an increase in the filing of complaints.

Local fiscal implications

None.

Effective date

This act shall take effect on the ninetieth day after is shall have become law.