BILL NUMBER:S968               REVISED 01/10/2011

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
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.