BILL NUMBER:S2192

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.