The Second Circuit recently certified three questions regarding who may be held liable under New York State Human Rights Law Section 296(15) which prohibits discrimination on the basis of a criminal conviction record. 

In Griffin v. Sirva, Inc., the Second Circuit concluded that New York law is undeveloped in this area and has certified the following three questions to the New York State Court of Appeals:

  1. Is criminal conviction discrimination liability under Section 296(15) limited only to the aggrieved party’s “employer?”
  2. If so, how should courts determine whether an entity is the aggrieved party’s employer for the purposes of a criminal conviction discrimination claim under Section 296(15)?
  3. Does the “aiding and abetting” liability provision in Section 296(6) apply to criminal conviction discrimination liability under Section 296(15) so that a non-employer may be liable under Section 296(15) as an aider and abettor of an employer’s unlawful denial of discrimination?

The case involves two former employees of a contractor moving company who brought suit against a company (Allied) that contracted with the moving company. The former employees sued Allied for discrimination based on their criminal conviction record when they were terminated after the contractor ran a background check. The contractor signed an agreement with the defendant, Allied, where Allied required the contractor to ensure that all the employees working on Allied jobs successfully completed a background check and required that employees with certain felony convictions be permanently disqualified from the jobs at Allied. Allied also was entitled to conduct “periodic audits” of the contractor’s employees to verify compliance with the agreement. The two terminated individuals were both convicted of sex offenses, were designated as “sexually violent offenders” and both served significant time for the sex crimes.

The district court held in favor of Allied (and its parent company), finding that they cannot be liable under NYSHRL 296(15) because they were not the “employers.” However, the Second Circuit’s analysis suggests that the definition of “employer” may be broader in the context of criminal conviction discrimination cases. The Second Circuit also stated that whether the “joint employer” doctrine or “single employer” doctrine and whether “aider and abettor” liability applies to criminal conviction discrimination cases remains unresolved.