NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1729
SPONSOR: Mosley
 
TITLE OF BILL: An act to amend the correction law, in relation to the
manner through which enforcement proceedings are brought
 
PURPOSE:
The purpose of this bill is to ensure that persons illegally discrimi-
nated against by a public employer due to a prior criminal conviction
unrelated to the employment sought is able to seek redress with the
Division of Human Rights.
 
SUMMARY OF PROVISIONS:
Section one of the bill amends the correction law to establish that the
provisions of Article 23-A of the correction law are enforceable by the
Division of Human Rights when a person is illegally discriminated
against by a public employer.
Section two of the bill is the effective date.
 
JUSTIFICATION:
New York State's Human Rights Law § 297 enumerates the remedies avail-
able to a person with a claim of unlawful discrimination. This provision
states that, "Any person (emphasis added) claiming to be aggrieved by an
unlawful discriminatory practice may, by himself or herself- make, sign
and file with the division a verified complaint."
Inexplicably, under a separate provision of New York State law, one
class of persons, those discriminated against by public agencies on the
basis of their criminal record, have their remedies limited. Under
Section 755 of the Correction Law, individuals denied employment by a
public agency because of their criminal record have only one remedy
available to them - an Article 78 proceeding in state court. However,
individuals wrongly denied employment by a private employer are able to
file a complaint with the Division of Human Rights. There is no reason
that only people who are discriminated against by a public agency
because of their criminal record should be limited to fewer options than
those complaining about discrimination by private employers. Thus, this
bill amends Section 755 of the Correction Law to give persons who suffer
discrimination based on a criminal record by a public employer access to
the same enforcement mechanisms as those discriminated against by
private employers.
There are many legal and policy reasons why persons who experience
criminal-records based discrimination by public employers should have
access to the same enforcement mechanisms available to others who expe-
rience discrimination by private employers:
* Article 78 proceedings cost the State significant amounts of time and
money through the use of court personnel (judges, court officers,
clerks, etc.), Attorney General and Corporation Counsel resources and
time, as well as time spent by the petitioner drafting the appeal and
appearing in court. By contrast, the Division of Human Rights and the
Commission on Human Rights have streamlined procedures and mechanisms in
place as well as expertise in evaluating discrimination claims. Proc-
essing criminal records based discrimination claims administratively,
which many individuals would choose to do because it does not require
them to obtain legal counsel, will achieve speedy results at less cost
to everyone.
*Individuals only have four months to file an Article 78 if they are
discriminated against by a public employer. This period is so brief that
it has usually passed before many claimants even learn the option of an
Article 78 exists, or before they are able to secure legal represen-
tation, which most individuals will need in order to file these cases.
*Even when a claimant does successfully file and win an Article' 78, it
is a Pyrrhic victory - the job in question is usually not available by
the time the decision is rendered (usually more than a year after the
initial job denial) and the agency reconsiders the employment applica-
tion. By contrast, the Division of Human Rights and the Commission on
Human Rights are able to move quickly in evaluating discrimination
complaints and working towards settlement.
*Singling out a protected class of persons who are disproportionately
from communities of color and limiting the legal remedies available to
them may well violate Title VII of the Civil Rights Act of 1964 and the
New York State Human Rights Law, which prohibits private employers and
state and local governments from discriminating in employment based upon
race, color, gender, national origin, or religion. The Equal Employment
Opportunity Commission (EEOC) has ruled that employment policies (which
could include statutes that provide legal remedies) that exclude indi-
viduals based upon their criminal history may violate the Civil Rights
Act because such policies disproportionately impact minorities, who are
arrested and convicted at a significantly higher rate than their
percentage in the population.
Amending Article 755 of the Correction Law will mean that individuals
who are discriminated against by a public agency as a result of their
criminal record will be able to obtain real relief for the discrimi-
nation they have suffered. It would also extend equal protection to all
persons who suffer from discrimination and would save the state time and
resources at a time when resources need to be saved.
 
LEGISLATIVE HISTORY:
2009-2010 (A.8012/S.4687) Vetoed by Governor,
Memo. 6756 08/13/10 2011 Passed Assembly
 
FISCAL IMPLICATIONS:
There may be some small increase in administrative costs to the Division
of Human Rights as a result of an increase in the filing of complaints.
 
LOCAL FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after is shall have
become law.
STATE OF NEW YORK
________________________________________________________________________
1729
2017-2018 Regular Sessions
IN ASSEMBLY
January 12, 2017
___________
Introduced by M. of A. MOSLEY, JAFFEE -- read once and referred to the
Committee on Correction
AN ACT to amend the correction law, in relation to the manner through
which enforcement proceedings are brought
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 755 of the correction law, as added by chapter 931
2 of the laws of 1976, is amended to read as follows:
3 § 755. Enforcement. [1. In relation to actions by public agencies, the
4 provisions of this article shall be enforceable by a proceeding brought
5 pursuant to article seventy-eight of the civil practice law and rules.
6 2. In relation to actions by private employers, the] The provisions of
7 this article shall be enforceable by the division of human rights pursu-
8 ant to the powers and procedures set forth in article fifteen of the
9 executive law, and, concurrently, by the New York city commission on
10 human rights; provided, however, that nothing in this section shall be
11 construed to limit the right of a person to pursue any legal remedy
12 available under article fifteen of the executive law or any other appli-
13 cable provision of law.
14 § 2. This act shall take effect on the ninetieth day after it shall
15 have become a law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04021-01-7