The First Department affirmed the dismissal of a former police officer’s complaint which alleged he was fired from his job at Con Edison because of his convictions, in violation of the state and city Human Rights Law. While a police officer, the plaintiff was charged with beating and sodomizing an arrestee in a notorious case. Plaintiff’s assault-related convictions were vacated and the jury deadlocked in the second trial. The only conviction which remained was for perjury. Plaintiff was fired because of workplace disruption and customer relations stemming from plaintiff’s perceived involvement in the assault. The First Department determined the firing was not the result of discrimination based upon the perjury conviction. The vacated convictions were not “convictions” covered by the statutory prohibition:
The assault-related convictions on which plaintiff was retried, and the jury deadlocked, are not covered by article 23-A [of the Correction Law], since the article applies only to individuals who “previously have been convicted,” and the vacatur of plaintiff’s prior assault convictions rendered those convictions nullities … . Although plaintiff maintains that he remains “previously … convicted,” we reject this interpretation since it would permit an employer to deny employment based on a vacated conviction in reliance on the statutory exceptions … .
The legislative intent is to rehabilitate, and therefore avoid recidivism by, “ex-offenders,” not those whose convictions have been vacated, who generally do not need rehabilitation and are not at risk of recidivism … . “Although ex-offenders were urged when released from prison to find employment as a part of their rehabilitation, they had great difficulty in doing so because of their criminal records…. Failure to find employment … injured society as a whole by contributing to a high rate of recidivism … Thus, [article 23-A] sets out a broad general rule that employers and public agencies cannot deny employment or a license to an applicant solely based on status as an ex-offender” … . Schwarz v Consolidated Edison, Inc., 2017 NY Slip Op 00927, 1st Dept 2-7-17
EMPLOYMENT LAW (DISCRIMINATION, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)/CONVICTIONS (HUMAN RIGHTS LAW, PLAINTIFF’S FIRING FOR WORKPLACE DISRUPTION AND CUSTOMER RELATIONS STEMMING FROM PLAINTIFF’S PERCEIVED INVOLVEMENT IN A NOTORIOUS ASSAULT CASE [HIS CONVICTIONS WERE VACATED] DID NOT VIOLATE THE HUMAN RIGHTS LAW)