This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 35
Trathony Griffin and Michael
Godwin,
Appellants,
v.
Sirva, Inc. and Allied Van Lines,
Inc.,
Respondents.
Stuart L. Lichten, for appellants.
George W. Wright, for respondents.
Philip V. Tisne, for amicus State of New York.
Legal Action Center et al.; National Association of
Professional Background Screeners; Consumer Data Industry
Association; American Moving & Storage Association, Inc.; Erik M.
Fink et al., amici curiae.
DiFIORE, Chief Judge:
The United States Court of Appeals for the Second
Circuit has posed three questions regarding who may be liable
under the New York State Human Rights Law. Two questions concern
section 296 (15), which prohibits discrimination against
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individuals with prior criminal convictions. A third question
concerns section 296 (6), which prohibits aiding and abetting
discriminatory conduct.
Plaintiffs are two former employees of Astro Moving and
Storage Co., Inc. (Astro), a New York company. Astro hired
plaintiffs as laborers in August 2008 and May 2010, respectively.
Both have prior criminal convictions for sexual offenses against
young children.
In June 2010, Astro entered into a contract with Allied
Van Lines, Inc. (Allied), pursuant to which Astro performed
moving services for Allied. Allied, a nationwide moving company
based in Illinois, is a subsidiary of Sirva, Inc. (Sirva).
Thereafter, approximately 70 to 80 percent of Astro's work was
performed for Allied. The contract precluded Astro from working
for other motor carriers, with limited exceptions.
The contract required Astro to adhere to Allied's
Certified Labor Program guidelines, which required that employees
who "conduct the business of Allied at customer's home or place
of business . . . must have successfully passed a criminal
background screen . . . as specifically approved by Allied." If
Astro violated the guidelines by using unscreened labor, it was
subject to escalating monetary penalties. Under these
guidelines, employees automatically failed the criminal
background screen if they had ever been convicted of a sexual
offense.
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In 2011, plaintiffs consented to have Sirva and/or its
agents investigate their criminal records, which identified their
convictions for sexual offenses against young children. Soon
thereafter, Astro fired plaintiffs.1
Plaintiffs and a third Astro employee who is not a
party to the Second Circuit appeal sued Astro, Sirva, and Allied
in the United States District Court for the Eastern District of
New York. The complaint alleges violations of the New York State
Human Rights Law §§ 296 (15) and (6), the New York Labor Law, the
Fair Labor Standards Act, and 42 USC § 1981. Only the claims
under the Human Rights Law are relevant here.
Plaintiffs moved for partial summary judgment against
all defendants on liability for their section 296 (15) claim,
which alleged discrimination on the basis of their prior criminal
convictions. Defendants Allied and Sirva cross-moved for summary
judgment. The district court denied plaintiffs' motion and
granted Allied and Sirva's motion. The district court held that
section 296 (15) applies only to employers; that neither Sirva
nor Allied was plaintiffs' employer; and that neither Sirva nor
Allied was liable under section 296 (6), which imposes aiding and
abetting liability, because neither participated in firing
plaintiffs.
1
The Second Circuit acknowledges there is some dispute
regarding whether one plaintiff was actually "terminated" or
whether he voluntarily resigned. Like the Second Circuit, we
assume, without deciding, that Astro fired both plaintiffs.
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Plaintiffs appealed to the Second Circuit.2
Recognizing that the appeal presented unresolved questions under
New York law, the Second Circuit certified three questions to
this Court regarding who is liable under the New York State Human
Rights Law (Griffin v Sirva Inc., 835 F3d 283 [2d Cir 2016]).
Certified Question No. 1
The first certified question asks: "Does Section 296
(15) of the New York State Human Rights Law, prohibiting
discrimination in employment on the basis of a criminal
conviction, limit liability to an aggrieved party's 'employer'?"
(835 F3d at 294). We answer this question in the affirmative.
Human Rights Law § 296 (15) provides that:
"[i]t shall be an unlawful discriminatory
practice for any person, agency, bureau,
corporation or association, including the
state and any political subdivision thereof,
to deny any license or employment to any
individual by reason of his or her having
been convicted of one or more criminal
offenses . . . when such denial is in
violation of the provisions of article
twenty-three-A of the correction law.
Further, there shall be a rebuttable
presumption in favor of excluding from
evidence the prior incarceration or
conviction of any person, in a case alleging
2
While plaintiffs' appeal was pending, their claims against
Astro proceeded to a jury trial. The jury found that Astro was
not liable on plaintiffs' claims under the Human Rights Law.
Although Allied and Sirva argued to the Second Circuit that the
jury verdict in favor of Astro should defeat plaintiffs' claims
against them, the Second Circuit declined, as a matter of federal
procedure, to consider the impact of the verdict on the appeal
because the verdict was not before the district court on the
summary judgment motion.
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[negligent hiring claims] if after learning
about an applicant or employee's past
criminal conviction history, such employer
has evaluated the factors set forth in
[Correction Law § 752], and made a
reasonable, good faith determination that
such factors militate in favor of hire or
retention of that applicant or employee."
Plaintiffs argue that, by its plain language, the law
extends liability beyond employers to "any person," in contrast
to other Human Rights Law prohibitions, which expressly limit
liability to employers or related entities such as licensing or
employment agencies. For instance, section 296 (1) (a) refers
expressly to "an employer or licensing agency"; similarly,
section 296 (1) (b) makes it unlawful "[f]or an employment agency
to discriminate" in employment on the basis of age, race, creed,
color, or other specified grounds (Executive Law § 296 [1] [a];
[1] [b] [emphasis added]). In addition, plaintiffs contend that
the absence of the word "employer" from the first sentence in
subdivision (15) is made all the more glaring by the use of the
word twice in the second sentence addressing liability for
negligent hiring practices. Allied and Sirva respond that the
plain meaning of section 296 (15) as a whole, which incorporates
Article 23-A of the Correction Law (Article 23-A) by reference,
limits liability to employers.
We agree that liability under section 296 (15) arises
only upon a violation of Article 23-A. Section 296 (15)
prohibits "deny[ing] any license or employment . . . when such
denial is in violation of the provisions of article [23-A]."
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Article 23-A, in turn, instructs that "[n]o application for any
license or employment, and no employment or license held by an
individual, to which the provisions of this article are
applicable, shall be denied or acted upon adversely by reason of
the individual's having been previously convicted of one or more
criminal offenses" (Correction Law § 752).
In contrast to the Human Rights Law, Article 23-A
specifies further that the prohibition applies "to any
application by any person for a license or employment at any
public or private employer . . . and to any license or employment
held" (Correction Law § 751 [emphasis added]). This language
targets the employer, public or private, where the individual is
employed or has applied for employment. In particular, with
respect to prospective employment, liability arises only when it
concerns an application "at" an employer; with respect to
existing employment, liability arises only when an employer
discriminates against an existing employee. In other words, the
application or employment must relate to a specific or otherwise
identified employer.
Two exceptions to Article 23-A's prohibitions, set out
in Correction Law § 752, further clarify the scope of the
statute. The first exception applies when "there is a direct
relationship between one or more of the previous criminal
offenses and the specific license or employment sought or held by
the individual" (Correction Law § 752 [1]). The second exception
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applies when "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"
(Correction Law § 752 [2]). To determine whether either
exception applies, "the public agency or private employer" shall
consider eight enumerated factors (Correction Law § 753 [1]
[emphasis added]). These provisions make clear that Article 23-A
is addressed to employment determinations made by public and
private employers, and further demonstrate that only employers
can violate Article 23-A, and hence, section 296 (15).
Reading Correction Law §§ 751, 752, and 753 together,
Article 23-A limits liability for employment discrimination to an
employer -- either public or private. Section 751 targets
discrimination against an applicant "at" a particular employer or
against an existing employee. Section 752 sets out what conduct
it prohibits, and provides two exceptions. Under either
exception, "the public agency or private employer" must consider
the eight listed factors (Correction Law § 753). In other words,
a cause of action arises only if a person is denied employment by
a particular employer because of a prior criminal conviction and
the employer did not follow the procedure to determine whether an
exception applies. Because it incorporates Article 23-A by
reference, section 296 (15) of the Human Rights Law likewise
limits liability to a public or private employer. No room exists
under either the Correction Law or section 296 (15) to hold a
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nonemployer liable for employment discrimination.
Rather than follow section 296 (15)'s instruction to
look to Article 23-A of the Correction law, the dissent ignores
the significance of §§ 751 through 753 thereof and instead reads
section 296 (15) in isolation. The dissent contrasts the use of
the word "employer" in the second sentence of section 296 (15)
with its absence in the first sentence of the section and
concludes that the scope of liability set out in the first
sentence must therefore extend beyond employers (dissenting op at
4). In our view, this apparent discrepancy is not a discrepancy
at all. The first sentence is stated more broadly because the
prohibition on discrimination (as elucidated further in Article
23-A) applies to both private employers and public agencies. The
second sentence, in contrast, solely concerns negligent hiring
claims. These claims may be brought against private employers
only, not public agencies. Thus the use of the word "employer"
in the second sentence not only makes sense, but is required.3
The legislative history of section 296 (15) leads to
the same conclusion that the broad language of the statute was
intended to apply to private employers and public agencies. The
Bill Jacket's Approval Memorandum states that the legislation
"provides reasonable standards to be applied by public agencies
3
Negligent hiring claims are generally barred against
public agencies under the doctrine of governmental function
immunity (see e.g. Mon v City of New York, 78 NY2d 309, 313-16
[1991]).
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and private employers when considering applications by former
offenders" (Governor's Approval Mem, Bill Jacket, L 1976, ch 931
at 6). The chairman of the Senate Committee on Crime and
Correction, which sponsored the bill, submitted a memorandum
stating that this amendment is "applicable . . . to any employer
whether private or public" (Mem of Committee on Crime and
Correction, Bill Jacket, L 1976, ch 931 at 8). Contrary to what
the dissent implies, the legislative history does not indicate
any person or entity other than an employer who may be liable
under section 296 (15).
Accordingly, we answer the first certified question in
the affirmative.
Certified Question No. 2
Because we answered the first certified question in the
affirmative, we turn to the second question, which asks: "If
Section 296 (15) is limited to an aggrieved party's 'employer,'
what is the scope of the term 'employer' for these purposes, i.e.
does it include an employer who is not the aggrieved party's
'direct employer,' but who, through an agency relationship or
other means, exercises a significant level of control over the
discrimination policies and practices of the aggrieved party's
'direct employer'?" (835 F3d at 294).
The question presumes that "a significant level of
control" over "discrimination policies," standing alone, might
confer employer status on an entity that is not the aggrieved
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party's direct employer. However, other factors are relevant to
that determination. We therefore reformulate this question to
reflect what the Second Circuit described in its ruling as an
open question of New York law for this Court: "[i]f Section 296
(15) is limited [to an employer,] how should courts determine
whether an entity is the aggrieved party's 'employer' for the
purposes of a claim under Section 296 (15)?" (835 F3d at 285).
Plaintiffs contend that the term "employer" should be
construed at least as broadly as it is in the context of Title
VII of the Civil Rights Act of 1964, the federal analogue to the
Human Rights Law. They cite the Second Circuit's decision in
Spirt v Teachers Ins. & Annuity Ass'n, which held that the term
employer is "sufficiently broad to encompass any party who
significantly affects access of any individual to employment
opportunities, regardless of whether that party may technically
be described as an 'employer' . . . as that term has generally
been defined at common law" (691 F2d 1054, 1063 [2d Cir 1982]
[internal quotation marks and citation omitted]). They contend
that Spirt and its progeny apply this "effective control" test to
determine who is an employer. Allied and Sirva counter that the
Second Circuit later abandoned Spirt, holding instead that in
Title VII cases the common-law definition of "employer" should
apply.
The Human Rights Law and Article 23-A of the Correction
Law contain definitions of "employer" and "private employer,"
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respectively, which relate solely to the number of persons
employed (Executive Law § 292 [5]; Correction Law § 750 [2]).
Neither definition provides guidance on who may be deemed an
employer. Our prior decisions have acknowledged the absence of a
substantive definition of "employer" in the Human Rights Law. In
Matter of Board of Higher Educ. of the City of N.Y. v Carter (14
NY2d 138 [1964]), this Court adopted the dictionary definition of
"employer," stating that it had found no other definition as
"clear and comprehensive" (id. at 147, quoting Report of NY State
Temp Comm Against Discrimination, 1945 NY Legis Doc No. 6 at 28;
see also Patrowich v Chemical Bank, 63 NY2d 541, 543 ["The Human
Rights Law definition of employer . . . provides no clue to
whether individual employees of a corporate employer may be sued
under its provisions"]).
Federal courts likewise have wrestled with a similar
ambiguity in the term "employer" in the context of Title VII and
other federal statutes. In 1992, the United States Supreme Court
held that absent a statutory definition of "employer," courts
should apply the common law to determine who is an employer
(Nationwide Mut. Ins. Co. v Darden, 503 US 318, 322-323 [1992]).
This doctrine, as articulated in an earlier Supreme Court
decision, identifies 13 factors, the most relevant being the
alleged employer's control over the individual (id. at 323-324,
citing Community for Creative Non-Violence v Reid, 490 US 730,
751-52 [1989]).
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Following Darden, the Second Circuit held that because
Title VII contains a "'nominal' or . . . otherwise unhelpful"
definition of "employer," the common-law test should govern
(Gulino v New York State Educ. Dept., 460 F3d 361, 371-372
[2006]). As in Darden, "the common-law element of control is the
principal guidepost that should be followed" (id. at 371
[internal quoation marks and citation omitted]).
In a different context, we have held that "[t]he
standards for establishing unlawful discrimination under section
296 of the Human Rights Law are the same as those governing title
VII cases under the Federal Civil Rights Act of 1964" (Rainer N.
Mittl, Ophthalmologist, P.C. v New York State Div. of Human
Rights, 100 NY2d 326, 330 [2003]; see also Margerum v City of
Buffalo, 24 NY3d 721, 731 [2015] ["We have consistently held that
the standards for recovery under the New York Human Rights Law
are in nearly all instances identical to title VII and other
federal law."]). In this instance, the lack of clarity in the
Human Rights Law itself certainly permits us to look to Title VII
cases for guidance.
That said, we need look no further than our own lower
courts to determine who is an employer under the Human Rights
Law. Decades before Gulino, our lower courts applied New York
common law to make that determination. In State Div. of Human
Rights v GTE Corp., the Appellate Division identified four
relevant factors: "'(1) the selection and engagement of the
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servant; (2) the payment of salary or wages; (3) the power of
dismissal; and (4) the power of control of the servant's
conduct'" (109 AD2d 1082, 1083 [4th Dept 1985], quoting 36 NY
Jur, Master and Servant, § 2). As with the Reid test (endorsed
in Darden and Gulino), "'[t]he really essential element of the
relationship is the right of control, that is, the right of one
person, the master, to order and control another, the servant, in
the performance of work by the latter'" (id.).
In light of the foregoing, we answer the second
certified question, as reformulated, as follows: common-law
principles, as discussed in GTE, determine who may be liable as
an employer under section 296 (15) of the Human Rights Law, with
greatest emphasis placed on the alleged employer's power "to
order and control" the employee in his or her performance of
work.
Certified Question No. 3
The third certified question asks: "Does Section 296
(6) of the New York State Human Rights Law, providing for aiding
and abetting liability, apply to § 296 (15) such that an out-of-
state principal corporation that requires its New York State
agent to discriminate in employment on the basis of a criminal
conviction may be held liable for the employer's violation of §
296 (15)?" (835 F3d at 294).
In our view, this question does not concern whether
there was discrimination in this particular case, but rather
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seeks clarification as to who may be liable under section 296 (6)
-- similar to the two prior questions regarding section 296 (15).
Therefore, we reformulate the question to ask "whether section
296 (6) extends liability to an out-of-state nonemployer who aids
or abets employment discrimination against individuals with a
prior criminal conviction." To this reformulated question, we
answer in the affirmative.
Section 296 (6) states: "It shall be an unlawful
discriminatory practice for any person to aid, abet, incite,
compel or coerce the doing of any of the acts forbidden under
this article, or to attempt to do so." The district court held
that for section 296 (6) to apply to a third-party entity who is
not the plaintiff's direct employer, the third party and the
employer must be "joint employers" (Griffin v Sirva, Inc., US
Dist Ct, ED NY, 11 Civ 1844, Brodie, J., 2014). The Second
Circuit questioned whether this was correct (Griffin, 835 F3d at
293).
Section 296 (6) extends liability to persons and
entities beyond joint employers, and this provision should be
construed broadly. Section 296 (6) applies to any "person."
Unlike section 296 (15), nothing in the statutory language or
legislative history limits the reach of this provision to
employers. Indeed, the purpose of subdivision (6) was "to bring
within the orbit of the bill all persons, no matter what their
status, who aid or abet any of the forbidden practices of
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discrimination or who attempt to do so," as well as "to furnish
protection to all persons, whether employers, labor organizations
or employment agencies, who find themselves subjected from any
source to compulsion or coercion to adopt any forbidden
employment practices" (Report of NY State Temp Comm Against
Discrimination, 1945 NY Legis Doc No. 6 at 31).
In accord with that purpose, we have previously applied
section 296 (6) to a newspaper company that had no employment
relationship with the plaintiff (National Org. for Women v State
Div. of Human Rights, 34 NY2d 416 [1974]). In National Org. for
Women (NOW), the defendant newspaper company divided employment
listings into categories with the captions "Help Wanted--Male"
and "Help Wanted--Female" (id. at 419). We held that these
listings discriminated on the basis of sex. Although the
defendant did not "directly perpetuat[e]" the discrimination
since it was not the women's employer or prospective employer, it
"aided and abetted" such discrimination as condemned by section
296 (6) (id. at 421). Notably, the Court in NOW did not consider
the issue of whether, separate from the newspaper company, any
employer or prospective employer was liable for primary
discrimination under the Human Rights Law.
Section 296 (6) also applies to out-of-state
defendants. The Human Rights Law contains an extraterritoriality
provision, which provides: "The provisions of this article shall
apply as hereinafter provided to an act committed outside this
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state against a resident of this state . . . if such act would
constitute an unlawful discriminatory practice if committed
within this state" (Executive Law § 298-a [1]). We have held
that "[t]he obvious intent of the State Human Rights Law is to
protect 'inhabitants' and persons 'within' the state, meaning
that those who work in New York fall within the class of persons
who may bring discrimination claims in New York" (Hoffman v
Parade Publs., 15 NY3d 285, 291 [2010]). In particular, the
extraterritoriality provision "protects New York residents . . .
from discriminatory acts committed outside the state" (id. at
292). To prevail, the injured party "must plead and prove that
the alleged discriminatory conduct had an impact in New York"
(id.).
Accordingly, the first certified question should be
answered in the affirmative and the remaining questions, as
reformulated, answered in accordance with this opinion.
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Griffin v Sirva
No. 35
RIVERA, J.(dissenting):
The Second Circuit has certified to us three questions
regarding the proper interpretation of sections 296 (15) and 296
(6) of the New York State's Human Rights Law (HRL), arising in an
action by plaintiffs who allege they were terminated from
employment based on their prior criminal convictions (Griffin v
Sirva Inc., 835 F3d 283 [2d Cir 2016]). The majority's approach
disregards the express statutory terms of the HRL and the
legislative mandate that it be construed liberally to achieve its
remedial antidiscrimination purposes. I therefore write
separately to explain how the relevant sections should be
analyzed in accordance with the text and legislative intent.
I.
The first certified question from the Second Circuit
asks, "Does Section 296 (15) of the New York State Human Rights
Law, prohibiting discrimination in employment on the basis of a
criminal conviction, limit liability to an aggrieved party's
'employer'?" The answer, based on the language of section
296 (15), as confirmed by its legislative purpose, is no.
The HRL embodies New York's strong public policy
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against discrimination (New York Inst. of Tech. v State Div. of
Human Rights, 40 NY2d 316, 324 [1976]). As stated expressly in
the Executive Law, the HRL "shall be construed liberally" to
achieve its purposes (Executive Law § 300). To that end, "it is
the duty of courts to make sure that the Human Rights Law works
and that the intent of the Legislature is not thwarted by a
combination of strict construction of the statute and a battle
with semantics" (City of Schenectady v State Div. of Human
Rights, 37 NY2d 421, 428 [1975]).
As one of several amendments issued over the years that
expand the reach of the HRL, the legislature enacted section
296 (15), along with simultaneous amendments to the Corrections
Law, to serve as a general bar on unlawful employment
discrimination against individuals with prior criminal
convictions (Correction Law art 23-A; Acosta v New York City
Dep't of Educ., 16 NY3d 309, 314 [2011]).1 The new provisions
were intended to "facilitate the obtainment of employment for ex-
offenders and to aid their rehabilitation by eliminating many of
the obstacles to employment" (Mem in Support, Bill Jacket, L
1976, ch 931). Beyond the obvious protection these provisions
afford to individuals, the legislature recognized that improving
the employment opportunities of the formerly convicted would
benefit society. The sponsors' supporting memorandum declared
1
The prohibition in section 296 (15) on discrimination in
licensing is not at issue here.
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that "[u]nemployment is the greatest deterrence to rehabilitation
as statistics indicate that many of the ex-offenders return to
lives of crime because other employment is not available" (Mem in
Support, Bill Jacket, L 1976, ch 931). The Governor's memorandum
similarly noted that "[o]bservers of our criminal justice system
agree that the key to reducing crime is a reduction in
recidivism. . . . The great expense and time involved in
successfully prosecuting and incarcerating the criminal offender
is largely wasted if upon the individual's return to society,
[the individual's] willingness to assume a law-abiding and
productive role is frustrated by senseless discrimination" (Gov
Approval Mem, Bill Jacket, L 1976, ch 931). Thus, "[p]roviding a
former offender a fair opportunity for a job is a matter of basic
human fairness, as well as one of the surest ways to reduce
crime" (id.).
In furtherance of these dual goals, section 296 (15)
sweeps broadly and declares:
"It shall be an unlawful discriminatory
practice for any person, agency, bureau,
corporation or association, including the
state and any political subdivision thereof,
to deny any license or employment to any
individual by reason of his or her having
been convicted of one or more criminal
offenses, or by reason of a finding of a lack
of 'good moral character' which is based upon
his or her having been convicted of one or
more criminal offenses, when such denial is
in violation of the provisions of article
twenty-three-A of the correction law.
Further, there shall be a rebuttable
presumption in favor of excluding from
evidence the prior incarceration or
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conviction of any person, in a case alleging
that the employer has been negligent in
hiring or retaining an applicant or employee,
or supervising a hiring manager, if after
learning about an applicant or employee's
past criminal conviction history, such
employer has evaluated the factors set forth
in section seven hundred fifty-two of the
correction law, and made a reasonable, good
faith determination that such factors
militate in favor of hire or retention of
that applicant or employee."
By the text's clear language, section 296 (15) is not
limited to "employers," but applies to any person or entity
listed therein, so long as that actor's conduct violates Article
23-A of the Correction Law. Thus, the first sentence of section
296 (15) identifies those subject to its prescriptions by the
named category of actor, not by the actor's relationship to the
victim of the discriminatory conduct. Plainly, this evinces the
legislature's intent to cover unlawful conduct by employers and
non-employers alike.
References to an "employer" found later in section
296 (15) confirm that this is the legislature's intended
construction. In the second sentence, "employer" is mentioned
only with respect to an evidentiary rebuttable presumption
established in section 296 (15) and applicable in cases asserting
claims against an employer for the employer's negligent
employment actions. This part of section 296 (15) is directed at
the only actor implicated by the rebuttable presumption, the
employer. By contrast, the part that prohibits discriminatory
practices -- set forth in the first sentence -- applies to "any
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person, agency, bureau, corporation or association," making clear
that these terms are not limited to an employer.
"It is an elementary rule of interpretation that all
parts of an act are to be read and construed together to
determine the legislative intent, and that all should be
harmonized with one another" (Levine v Bornstein, 4 NY2d 241, 244
[1958]; see also Stat Law § 97). "[W]here the document has used
one term in one place, and a materially different term in
another, the presumption is that the different term denotes a
different idea" (Antonin Scalia & Bryan A. Garner, Reading Law
170 [2012]). As the Second Circuit noted here, the fact that the
term "employer" is "used twice in the second half of the
provision makes its absence in the first half addressing
discrimination even more glaring" (Griffin, 835 F3d at 290).2
2
The majority's explanation for why the legislature used
the term "employer" only in the second but not the first sentence
of section 296 (15) is an unnatural reading of this section and
ignores every relevant rule of statutory construction (see e.g.
McKinney's Cons Laws of NY, Book 1, Statutes, § 76 [Ordinary-
Meaning Canon]; McKinney's Cons Laws of NY, Book 1, Statutes,
§ 114 [General-Terms Canon]; see also United States v Castleman,
134 S Ct 1405, 1417 [2014] [Scalia, J. concurring] [Presumption
of Consistent Usage]). If, as the majority posits, the first
sentence is intended to encompass "public and private employers,"
why exclude these three words from the exhaustive list of those
chargeable under section 296 (15) with a discriminatory practice?
Surely it is not for lack of familiarity with these words and
their intended application since the legislature used the phrase
"public and private employers" in Article 23-A (Correction Law
§ 751). The most legally sound interpretation of section 296
(15) is that the legislature intended that each word be given
meaning. Certainly the legislature could not have anticipated its
selective list of entities would support a tortured construction
of this section that is neither liberal, as mandated by Executive
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The legislature's use of the term "employer" and
"person" in other parts of the HRL, and its choice to refer to
one over the other, confirms the word choice in section 296 (15)
is by design. To take two examples, section 296 (1) (a) states
it is a violation for "an employer or licensing agency" to
"refuse to hire or employ or bar or to discharge from employment"
on the basis of "age, race, creed, color, national origin, sexual
orientation, military status, sex, disability, predisposing
genetic characteristics, familial status, or marital status."
Section 296 (3) (a) states it is unlawful for any "employer,
licensing agency, employment agency or labor organization" to
refuse to provide reasonable accommodations to known disabilities
or pregnancy related conditions of "an employee, prospective
employee or member in connection with a job or occupation sought
or held or participation in a training program." In section
296 (15), the legislature expressly set forth a list of actors
subject to its prescriptions. Nowhere in this list is "employer"
mentioned. We must give meaning to every word when interpreting
the statute, and harmonize its terms, but we cannot add words or
interpret a statute in contradiction with the legislature's
express manifestations of its intent (see DaimlerChrysler Corp. v
Spitzer, 7 NY3d 653, 660 [2006]).
Law § 300, nor in furtherance of its general antidiscrimination
purpose or its specific goal of increasing job opportunities by
removing barriers to employment of persons with criminal records.
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Despite the commands of these rules of construction,
and the words in the statutory text, the majority narrowly
interprets section 296 (15) to apply only to employers based on
what the majority calls that section's incorporation of Article
23-A (majority op at 5). This reflects a misunderstanding of the
scope and purpose of section 296 (15) and the import of that
section's cross reference to Article 23-A. That cross reference
is meant to identify an HRL discriminatory practice by conduct
and result, and is not intended as establishing the relationship
of the offending actor to the aggrieved party.
A close reading of these two sections illustrates the
proper inter-statutory construction. Section 296 (15) provides
that it is an unlawful discriminatory practice for any person or
listed entity "to deny . . . employment to any individual by
reason of his or her having been convicted of one or more
criminal offenses, or by reason of a finding of a lack of 'good
moral character' which is based upon his or her having been
convicted of one or more criminal offenses, when such denial is
in violation of the provisions of article twenty-three-A of the
correction law." This part tracks the language of Corrections
Law § 752, which provides that no employment shall be denied or
acted upon adversely based on an individual's prior criminal
conviction, unless either of two exemptions set forth therein
apply. These exemptions require the application of reasonable
assessment standards to a person with a prior criminal conviction
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(see Approval Mem, Bill Jacket, L 1976, ch 931). Keeping in mind
the primary purpose of both the HRL and Article 23-A is to
eliminate employment barriers to those with criminal convictions
in order to increase work opportunities and reduce recidivism,
the logical interpretation of the statutory cross-reference is
that the proscription targets all offending conduct, as a result
of actions of employers and non-employers.3
The majority's reliance on legislative history to
support its alternative construction is misplaced. This Court
has consistently held that legislative history should only be
consulted where "the plain intent and purpose of a statute would
otherwise be defeated" based on the "literal language of a
statute" (Bright Homes, Inc. v Wright, 8 NY2d 157 [1960]), and
here the literal language of the statutes are aligned with their
legislative purpose of expanding opportunities and removing
barriers to employment. Further, and contrary to the majority's
3
The majority places great weight on the use of the
preposition "at" in the first sentence of Corrections Law § 751,
which states, "[t]he provisions of this article shall apply to
any application by any person for a license or employment at any
public or private employer. . . ." (emphasis added).
Interpreting this clause liberally, as the statute mandates
(Executive Law § 300), leads to the conclusion that the
provisions in Article 23 apply to any person's application for
any kind of employment at any employer. To read this clause to
constrain the HRL so that "the application . . . must relate to a
specific or otherwise identified employer" runs counter to the
HRL's direct interpretive guidance (Executive Law § 300; see also
Post v 120 E. End Ave. Corp., 62 NY2d 19, 24 [1984] [Statute
remedial in nature "should be liberally construed to spread its
beneficial effects as widely as possible.").
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suggestion, mere mention in the legislative history of reasonable
standards applicable to employers does not mean that the
legislature intended to exclude actions by nonemployers from
coverage. Otherwise Article 23-A would not be couched in
language specific to the outcome -- i.e. denial of employment or
adverse employment action -- but would state simply that an
employer cannot discriminate in employment based on a criminal
conviction unless one of the two exceptions applies. Tellingly,
section 753 places the responsibility of considering the
exemptions squarely on the shoulders of an employer, as that is
the entity in the position to determine whether the exemptions
apply to the particular circumstances of the individual and the
job (see Correction Law § 753 [1]).
Even if the majority were correct that Article 23-A
targets employers, the HRL is not so limited. The HRL seeks to
ferret out discriminatory practices across a wide range of areas
-- public and private employment and housing; education; credit;
public accommodations, resort and amusement; public services --
and casts a wide net over those whose actions deny "every
individual in the state . . . an equal opportunity to enjoy a
full and productive life" (Executive Law § 290; see Koerner v
State, 62 NY2d 442, 449, 467 [1984] [HRL has "broad,
ameliorative purposes."]). To further the legislature's
antidiscrimination purpose in the area of employment, our
interpretation of the HRL must be grounded in the realities of
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the modern workplace, especially the variegated shifts in
employment relationships.
The changing nature of the employer-employee construct
has a particularly adverse impact on job opportunities for
persons with prior criminal convictions. Non-traditional
employment structures are now commonplace, such that several
persons or business entities are positioned to significantly
affect the employment relationship (see Keith
Cunningham-Parmeter, From Amazon to Uber. Defining Employment in
the Modem Economy, 96 BU L Rev 1673, 1683, 1727 [2016]; Noah
Zatz, Working Beyond the Reach or Grasp of Employment Law, The
Gloves-Off Economy: Workplace Standards at the Bottom of
America's Labor Market, 31, 37-42 [Annette Bernhardt et al. eds.
2008]). For several reasons, large numbers of individuals with
criminal histories have limited employment options and find
themselves on the fringes of the labor market, and more reliant
than other job applicants on temporary staffing companies (see
Gretchen Purser, "Still Doin' Time": Clamoring for Work in the
Day Labor Industry, 15 J Lab Soc'y 397, 408 [2012]). Moreover,
unlike when the legislature first adopted section 296 (1) and
Article 23-A, it is easier and less expensive to do a background
check and subsequently disqualify large numbers of persons based
on the single question of whether the individual has ever been
convicted of a crime, without any consideration of the
individual's circumstances and the nature of the job. The
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majority's reading ignores that this is the exact scenario
section 296 (15) -- and Article 23-A -- seek to address (see
Acosta, 16 NY3d at 314; Gov Approval Mem, Bill Jacket, L 1976, ch
931). Simply stated, the point of these statutes is to increase
the likelihood that persons with criminal records will find work
and live productive lives rather than return to a life of crime.
Structural obstacles to that goal are the precise target of the
legislative scheme.
The majority's interpretation of section 296 (15) also
relies on a flawed "incorporation" analysis that, by its terms,
limits the class of employers subject to section 296 (15).
Article 23-A defines "private employer" as "any person, company,
corporation, labor organization or association which employs ten
or more persons" (Correction Law § 750). By contrast, the HRL
states that "employer" "does not include any employer with fewer
than four persons in his or her employ" (Executive Law § 292
[5]). "Person," meanwhile, is defined by Human Rights Law § 292
(1) to include "one or more individuals, partnerships,
associations, corporations, legal representatives, trustees,
trustees in bankruptcy, or receivers." There is an inconsistency
between the two statutes, as section 296 (15) would apply to an
employer that employs six persons, while Article 23-A would not.
Stated another way, the class of employers covered by Article 23-
A is smaller than the class of employers covered by HRL. If, as
the majority reasons, only actions by employers who violate
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Article 23-A are subject to section 296 (15), then fewer
employers would be covered by its prescriptions, in direct
contravention of the HRL. This interpretation oversteps the
bounds of our judicial role as the body tasked with interpreting,
not rewriting, the laws (Morgenthau v. Citisource, Inc., 68 NY2d
211, 223 [1986]). Certainly this is not what the legislature
intended when it made the policy choice to cover entities with a
minimum of four employees.
The majority also fails to adequately explain why
reference to "person" in section 296 (15) is limited to an
employer, but the same term in section 296 (6) applies to any
individual or entity, even absent an employment relationship with
the aggrieved party (majority op at 14-15). It is counter to
both the HRL's antidiscrimination goal and common sense to read
the plain language of section 296 (15) narrowly, only to then
adopt a definition of "person" that encompasses certain non-
employers but not others.
For the reasons I have discussed, the prescriptions of
section 296 (15) are not limited to an employer. Therefore, the
first certified question should be answered in the negative,
rendering it unnecessary to answer the second certified question.
II.
The majority has chosen to respond to the second
certified question, as reformulated by my colleagues, to ask how
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a court determines whether an entity is an employer within the
meaning of section 296 (15). While I do not believe the Court
should reach this question, I write to explain my disagreement
with the majority's answer.
The majority states that a court must consider common-
law principles, with an emphasis on the employer's power to
"order and control" the employee's work performance (majority op
at 12-13).4 In some instances, this approach would broaden the
definition of employer beyond the traditional direct employer
(i.e., the entity that hires and compensates the aggrieved
employee) to include a non-direct or indirect employer (e.g.,
corporate parents and franchisors). This theory of employer
certainly brings the majority closer to the intent of the HRL in
some cases, but the approach is still too narrow. Here, applying
the four factors laid out in State Div. of Human Rights v GTE
Corp. (109 AD2d 1082, 1083 [4th Dept 1985], quoting 36 NY Jur,
Master and Servant, § 2), with "greatest emphasis placed on the
alleged employer's power 'to order and control'" the employee's
work performance (majority op at 11-12), it is unlikely that
4
The majority relies on title VII in answering the second
certified question to expand the category of parties who can be
held liable for violations under section 296 (15), but title VII
does not prohibit discriminatory practices against persons with
criminal records as prescribed by the HRL. Indeed, "[a]s a
precursor to the 1964 Civil Rights Act, the Human Rights Law is
not modeled on title VII, and has certain significant
distinctions that extend its coverage beyond that of title VII"
Margerum v City of Buffalo, 24 NY3d 721, 736 [2015] [Rivera, J.
dissenting]). In this case, title VII lends no guidance on the
intent and purpose of the HRL.
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either defendant could be found to be an employer. Neither
contributed to the selection and engagement of Astro employees,
paid salary or wages, possessed the power of dismissal, or
controlled Astro's employees' conduct (see majority op at 12-13).
It is even more difficult to see how Allied or Sirva would meet
the test in Community for Creative Non-Violence v Reid (490 US
730, 751-752 [1989])(majority op at 13).
The majority's position could also be read to exclude
certain non-employers who are able to adversely affect employment
of a person with a criminal record or even to bar access to
employment all together. As the State points out, "background-
check or credit-reporting agencies (which screen job applications
on behalf of employers) have automatically disqualified job
candidates with criminal histories and sent them rejection
letters -- thus, preventing such candidates from even getting
their foot in the door of the hiring process" (Brief of State of
New York as Amicus Curiae 17). An employment agency does not
have control over the worker's employment terms, conduct,
retention or dismissal, and does not pay the worker's wages (see
GTE Corp., 109 AD2d at 1083). Rather, these agencies serve as
the gatekeeper between the applicant and the employer. In that
gatekeeping role, they have an enormous impact on employment
opportunities (see Sibley Mem'l Hosp. v Wilson, 488 F2d 1338,
1341 [DC Cir 1973] [party who was an intermediary between
employees and employers denied potential employees significant
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employment opportunities when exercising control of access to
potential employers]). Exclusion of such actors from the
proscriptions of section 296 (15) runs counter to its legislative
purpose and ignores that over the years the legislature has
continued to broaden coverage under the HRL to address the
greatest expanse of discriminatory practices (L 1975, ch 803; L
1996, ch 204; L 2002, ch 2; L 2003, ch 106; L 2005, ch 75; L
2009, ch 80; L 2010, ch 196; see Margerum v City of Buffalo, 24
NY3d 721, 734 [2015] [Rivera, J. dissenting, discussing history
of expansion]).
Of course if such actors were encompassed within the
definition of employer adopted by the majority, the majority
would have effectively come around to my view of section
296 (15), i.e. that this section covers employers and non-
employers who are involved in the denial of employment, or
adversely act upon an application or employment based solely on
the fact of an individual's prior criminal conviction. In any
case, there are unforeseen consequences of adopting a definition
of "employer" that may have broader application beyond these
certified questions. We should be especially cautious about
pronouncing a legal theory when it is unnecessary to do so and
without input from the State, which here declined to propose an
answer to the second certified question regarding the definition
of the term "employer."
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III.
The Second Circuit's third certified question asks:
"Does Section 296(6) of the New York State Human Rights Law,
providing for aiding and abetting liability, apply to § 296 (15)
such that an out-of-state principal corporation that requires its
New York State agent to discriminate in employment on the basis
of a criminal conviction may be held liable for the employer's
violation of § 296 (15)?" That question must be understood,
following the first and second certified questions, as an attempt
to determine liability under section 296 (6) if this Court
concludes that such an out-of-state actor would not be subject to
section 296 (15). I would not answer the third question because
the entity and conduct described would be covered under section
296 (15), as such an entity fits within the broad coverage of the
statute as I have described it.
However, the majority has chosen to reformulate the
question to address whether an out-of-state non-employer who aids
or abets employment discrimination may be liable under section
296 (6) (majority op at 14). That reformulated question is no
question at all because section 296 (6) applies to "any person"
that aids or abets a discriminatory practice, and thus includes
an actor who mandates discrimination, and, as the majority
correctly states, the HRL, by its terms and in accordance with
our case law, has extraterritorial reach (Executive Law § 298-a
[1]); Hoffman v Parade Publs., 15 NY3d 285, 291 [2010]; majority
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op at 15-16).
To the extent the majority suggests in its discussion
of National Org. for Women v State Div. of Human Rights (34 NY2d
416 [1974] (NOW) that section 296 (6) may be read so broadly as
to cover any actor with a tangential connection to discrimination
writ large, I disagree. It is true that in NOW, this Court
stated that the newspaper company did not "directly perpetuat[e]
discrimination" based solely on its own actions (NOW, 34 NY2d at
421). However, the newspaper's use of separate job listings
based on sex aided and abetted sex discrimination within the
meaning of the HRL because the listings ensured the
discriminatory outcome prohibited by law. As the Court
explained,
"it is often the case that a person or
organization acting in a manner which
genuinely intends to be descriptive becomes
in effect prescriptive. A policy purporting
to reflect a statistical phenomenon actually
becomes a self-fulfilling prophecy which
helps to generate the very presumptive
foundation for its existence. . . . Such sex
discrimination, of course, is prohibited by
section 296 of the Executive Law and those
who aid or abet such unlawful discrimination
are also chargeable with an unlawful
discriminatory practice" (id. at 421).
Further, the employers who knowingly listed the jobs were, at a
minimum, complicit in perpetuating "unlawful discrimination
against women" (id. at 420), as without the employers' submission
of job announcements there would be no separate listings.
Therefore, the case suggests that section 296 (6), liberally
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construed, requires engagement with or an attempt to influence a
direct or nondirect actor to violate the HRL.5
The statutory language bears this out. Here, Astro is
not an aider and abetter because it was plaintiffs' direct
employer, and cannot aid and abet its own direct discriminatory
practice (Medical Exp. Ambulance Corp. v Kirkland, 79 AD3d 886,
888 [2d Dept 2010]; Hardwick v Auriemma, 116 AD3d 465, 468 [1st
Dept 2014] [An individual cannot aid and abet his own violation
of the HRL]). If Allied was not an employer within the meaning
of section 296 (15), it would not have aided and abetted Astro's
termination of the plaintiffs because Allied's rule required
nonassignment to its jobs, not plaintiffs' termination. Although
it is possible that due to the significant economic value of
Allied's contract with Astro, Allied's rule prohibiting
plaintiffs from working on their moving jobs arguably compelled
and coerced Astro's discriminatory practice leading to
plaintiffs' termination, because an employer's decision may fall
within one of the exceptions set forth in Corrections Law § 752,
Allied's liability under the HRL is not certain.6
This analysis establishes that Allied may be liable
5
Even the report cited by the majority suggests that any
person or entity subject to section 296 (6) must have sought to
assist, instigate or reinforce a discriminatory practice, which
according to the majority can only be accomplished by an employer
(majority op at 14-15).
6
Indeed, at trial in the district court, a jury found that
Astro did not unlawfully violate the HRL (Griffin, 835 F3d at
287).
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either way, and we have come full circle again, because the only
reason that Allied is liable is its status as an employer,
broadly defined. The problem is this will not always be the
case. As I have discussed, there will be entities that are not
employers, but whose affect on employment results in unfair
discrimination against persons with criminal convictions. Some
of these actors may fall within the scope of 296 (6), but some
may not because they will not be in a position to compel or
coerce, and do not aid or abet because the employer is not aware
of their actions and does not discriminate.7
IV.
The answer to the first certified question, based on
the plain language and purpose of the HRL and section 296 (15),
is that the proscriptions in this section are not limited to
employers. That answer makes it unnecessary to consider the
second certified question, but regardless, the majority's
approach is too limited and excludes certain actors who serve as
obstacles to employment opportunities for persons with criminal
7
On the other hand, if the majority intends to cover a
person or entity who acts without direction from a direct
employer -- e.g., agencies who have internal protocols to
maximize profit and maintain a certain reputation by choosing the
least riskiest applicant, because those actors aid or abet
discrimination or attempt to do so, and not because of some
employment relationship (majority op at 11-12) -- then every
imaginable entity is covered. As I have discussed, and as the
legislature wisely recognized, a more direct way to achieve that
result is to read section 296 (15) to apply to both employers and
non-employers.
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convictions. As to the third certified question of whether an
out-of-state actor who requires an in-state agent to discriminate
may be liable under the aiding and abetting provision of section
296 (6), I would not answer the question because the out-of-state
actor would be subject to the prohibitions of section 296 (15).
Even if that were not the case, the language and the extra-
territorial reach of the HRL requires the question as submitted
to be answered in the affirmative.
* * * * * * * * * * * * * * * * *
Following certification of questions by the United States Court
of Appeals for the Second Circuit and acceptance of the questions
by this Court pursuant to section 500.27 of this Court's Rules of
Practice, and after hearing argument by counsel for the parties
and consideration of the briefs and the record submitted, the
first certified question answered in the affirmative and the
remaining questions, as reformulated, answered in accordance with
the opinion herein. Opinion by Chief Judge DiFiore. Judges
Stein, Fahey, Garcia and Wilson concur. Judge Rivera dissents in
an opinion.
Decided May 4, 2017
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