BILL NUMBER: S3358

SPONSOR: BAILEY
 
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 discrimi-
nated 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 5 297 enumerates the remedies avail-
able 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 crimi-
nal 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 discrimi-
nation 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.

Processing criminal records based discrimination claims administra-
tively, which many individuals would choose to do because it does riot
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 cave the state time and
resources at a time when resources need to be saved.

 
LEGISLATIVE HISTORY:

2017-18: S.2252/A.1729(Mosley)- Referred to Codes
2019-20: S.2193/A.7676(Mosley) - Referred to Crime Victims, Crime and
Correction

 
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.