Senate Bill S3358

                                BILL NUMBER:S3358

TITLE OF BILL:  An act to amend the correction law, in relation to the
manner through which enforcement proceedings are brought

PURPOSE:  The purpose of this bill is to ensure that persons illegally
discriminated against by a public employer due to a prior criminal
conviction unrelated to the employment sought is able to seek redress
with the Division of Human Rights.

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 expe-
rience 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.  Proc-

essing 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 represen-
tation, 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 applica-
tion. 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 indi-
viduals 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 discrimi-
nation 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.