News & Updates

NY Court of Appeals Rules That An Employer Violates Section 752 of the Corrections Law and Section 296 (15) of the Executive Law if it Fails to Consider the Mitigation Criteria Set Forth in Section 753 of the Corrections Law March 25, 2011

In a ruling issued on March 24, 2011, the New York Court of Appeals ruled that the New York City Department of Education violated section 752 of the Corrections Law and section 296 (15) of the Executive Law by denying employment to Madeline Acosta based upon a 1993 conviction for First Degree Robbery, when Ms. Acosta was seventeen (17) years old. Acosta v. New York City Department of Education, N.Y. Ct. of App. 2011, No. 36 (March 24, 2011)  The Court found that the New York City Department of Education (“DOE”) violated Corrections Law §752 and Executive Law §296 (15) as, by its own admission, it failed to consider all of the mitigating factors set forth in Corrections Law §753 in determining that employing Acosta would constitute an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Section 752 of the Corrections Law and section 296 (15) of the Executive Law makes it unlawful in New York to discriminate against an individual previously convicted of a criminal offense or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless:

  1. there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held; or
  2. the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

According to the Court, this general prohibition advances the rehabilitation and reintegration goals of the Penal Law, and further, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole.

Acosta does not involve the first exception to section 752; i.e. whether there is a direct relationship between the criminal offense and the job at issue.  This case deals with the second exception: whether the continuation of Acosta’s employment would involve an “unreasonable risk” to property or to the safety or welfare of specific individuals or the general public.

There is no statutory definition as to what shall constitute an “unreasonable risk”. Matter of Bonacorsa v Van Lindt,  71 N.Y.2d 605, 612 (1988).  However, section 753 of the Corrections Law sets forth several factors to be considered in making a determination of whether the employment of the individual will constitute an unreasonable risk:

  • (a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses
  • (b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person 
  • (c)  The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities
  • (d)  The time which has elapsed since the occurrence of the criminal offense or offenses
  • (e) The age of the person at the time of occurrence of the criminal offense or offenses
  • (f) The seriousness of the offense or offenses
  • (g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct
  • (h)  The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public

The failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive. See Matter of Arrocha v Board of Education of the City of New York, 93 N.Y.2d 361, 364 (1999).  Section 753 (2) of the Corrections Law requires an employer to give consideration to a “certificate of relief from disabilities” or a “certificate of good conduct”.  If the individual has one of these documents, the employer must presume that the employee has been rehabilitated in regard to the prior conviction. 

In Acosta, the Court ruled that based on that record, it was plain that the DOE failed to consider all of the factors in making its determination as to whether the "unreasonable risk" exception applied to Acosta, rendering the DOE’s denial of Acosta’s application arbitrary and capricious.  While finding it laudable that the DOE takes the safety and welfare of the entire school community very seriously, the Court ruled that the DOE’s failure to comply with the statutorily mandated minimum requirement of reviewing all of the documentation by the Acosta amounted to little more than a pro forma denial of petitioner's application on the basis of her prior criminal conviction.

Justice Smith dissented from this ruling, stating that it seemed to him that the majority has done what it acknowledges courts should not do: It has reweighed the relevant factors, and decided that it disagrees with the DOE's evaluation of them.

This prohibition on discriminating against individuals that have been convicted of a criminal offense has long presented difficulties for employers in the education, health care, and hum services environments.  In many instances, an employer may be required by a government contract to perform a criminal background or security check on an applicant.  However, employers are not relieved of the obligation to comply with section 752 of the Corrections Law.

Acosta re-enforces the fact that if an employee or applicant has a past conviction for a criminal offense, the employer must perform an analysis to determine whether the criminal offense is directly related to the job; or whether the employment of the individual will constitute a risk.  In performing this analysis, the employer should consider all of the factors in section 753 that are relevant.  All evidence submitted for consideration by the applicant or employee must be reviewed and considered.  Further, the applicant or employee should be given an opportunity to be heard.  Finally, regardless of whether the decision is made to hire or not to hire the applicant, the employer should explain how it weighed the Corrections Law §753 factors and arrived at its conclusion in writing.

If you have any comments or questions regarding the above case and its impact on your organization's operations, please contact any of our attorneys in the Labor and Employment Practice Group.