The New York City Human Rights Law (the “NYCHRL”) prohibits discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based profiling by law enforcement. The NYCHRL, pursuant to the 2005 Civil Rights Restoration Act, must be construed “independently from similar or identical provisions of New York state or federal statutes” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”
The Fair Chance Act (“FCA”), effective October 27, 2015, amends the NYCHRL by making it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment. If an employer wishes to withdraw its offer, it must give the applicant a copy of its inquiry into and analysis of the applicant’s conviction history, along with at least three business days to respond.
The New York City Commission on Human Rights recently issued updated legal guidance pertaining to the FCA, which prohibits employers from inquiring about an applicant’s criminal history before a conditional offer of employment is made. Background screening companies are also implicated by the FCA due to the fact that if an employer considers withdrawing a conditional offer, the employer must disclose to the applicant a complete and accurate copy of the criminal history information along with the date and time the employer accessed the information. In its recent guidance, the Commission stated that “because CRAs can be held liable for aiding and abetting discrimination under the NYCHRL, they should ensure that their customers only request criminal background reports after a conditional offer of employment.” The full text of the legal guidance can be found on the New York City Commission on Human Rights website.
Due to this new guidance, background screening companies should carefully review their compliance with the FCA and may want to consider conducting compliance reviews of their customers.
Troutman Sanders LLP has extensive experience in representing background screening companies with respect to compliance and litigation. We will continue to monitor future guidance on the FCA from the New York City Commission on Human Rights.