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HUMAN RIGHTS LAW PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissenting opinion, answered three certified questions from the Second Circuit. Plaintiffs were movers employed by Astro which contracted with Allied (located out of state) . Most of Astro’s work came from Allied. Plaintiffs had been convicted of sex offenses involving young children. After a criminal record screening ordered by Allied, plaintiffs were fired. Plaintiffs then sued Allied under Human Rights Law 296 alleging discrimination based upon their criminal convictions.  The Court of Appeals held: (1) Human Rights Law 296 applies only to discrimination by employers; (2) employers are those who directly control the work of employees; and (3) the provision of Human Rights Law 296 which prohibits aiding and abetting discrimination applies to out-of-state non-employers:

… [W]e need look no further than our own lower courts to determine who is an employer under the Human Rights Law. … In State Div. of Human Rights v GTE Corp., the Appellate Division identified four relevant factors: “‘(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct'” … . … [The]”‘… 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'”  … . * * *

Section 296 (6) [prohibiting aiding and abetting discrimination] applies to any “person.” … [N]othing 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 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” … . Griffin v Sirva, Inc., 2017 NY Slip Op 03557, CtApp 5-4-17

EMPLOYMENT LAW (DISCRIMINATION, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/CRIMINAL LAW (EMPLOYMENT LAW, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)

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