Griffin v. Sirva, Inc., et al., No. 11-CV-1844 (MKB) (E.D.N.Y. May 29, 2014): Plaintiffs, who were residential movers, alleged that their employer unlawfully terminated their employment due to criminal convictions for sex offenses in violation of the New York State Human Rights Law (NYSHRL). Under Article 23A of the New York Correction Law, employers are required to conduct an assessment of eight factors prior to taking an adverse employment action based on a previous criminal conviction. Those factors include the amount of time elapsed since the offense, the seriousness of the offense, and the age of the person at the time the offense occurred. In moving for summary judgment, the plaintiffs argued that their employer’s failure to conduct an individualized analysis as required by Article 23A was a per se violation of the NYSHRL. The court disagreed. Although it was undisputed that the employer did not evaluate the required factors, the court found that “it does not follow that a violation of the [New York Correction Law] is a per se violation of the NYSHRL.” Instead, the court evaluated whether the employer would have terminated the plaintiffs had it applied the factors. That analysis required an inquiry of disputed facts and therefore the plaintiffs’ summary judgment motion was denied.

This decision demonstrates that an employer’s failure to consider the factors enumerated in Article 23A of the New York Correction Law prior to taking an adverse employment action may not necessarily be discriminatory. However, employers should keep in mind that the decision was rendered on the plaintiffs’ summary judgment motion and therefore under a favorable standard to the employer’s defense. Further, under the court’s reasoning, a jury must independently evaluate the factors to determine if they would have been applied correctly had the employer done so. Employers should therefore continue to review and carefully document their consideration of Article 23A prior to making any employment decisions based upon applicants or employees’ prior criminal history.

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