The Second Circuit has asked the New York Court of Appeals for guidance on the scope of liability for discrimination based on criminal conviction history under Section 296(15) of the New York State Human Rights Law (“NYSHRL”). Section 296(15) states that it is an unlawful discriminatory practice to deny employment based on past criminal offenses without first weighing a set of factors enumerated in Article 23-A of the New York Corrections Law as to whether a conviction is properly disqualifying.

The case, Griffin v. Sirva, Inc., involves two former employees who were terminated after past criminal convictions were discovered through a background check.  The former employees worked directly for Astro Moving and Storage Co. (“Astro”), which in turn performed work for Allied Van Lines, Inc. (“Allied”) pursuant to an agency contract.  The terminated employees filed suit under the NYSHRL, alleging that an Allied policy that permanently disqualified employees or contractors convicted of certain felonies from performing jobs for Allied violated Section 296(15) because it did not take into account all of the Article 23-A factors.  The terminated employees named as defendants both Astro and Allied, as well as Sirva, Inc., a holding company of Allied’s parent company.

On appeal following the district court’s grant of summary judgment in favor of the defendants, the Second Circuit certified three questions to the New York high court regarding the definition of an “employer” for purposes of criminal conviction discrimination claims under the NYSHRL:

1. Does Section 296(15) limit liability for unlawful denial of employment only to a worker’s “employer”?
2. If so, how should courts determine whether an entity is an “employer” for the purposes of a claim under Section 296(15)?
3. Does the “aiding and abetting” liability provision of the NYSHRL apply to Section 296(15) so that a non‐employer may be liable as an aider and abettor of an employer’s unlawful denial of employment?

The Second Circuit noted that the questions are intended to consider whether liability may extend to entities that are not a worker’s direct employer but that nevertheless exercise control over policies and practices, as well as whether a contractual relationship between companies is sufficient to create liability. It further stated that certification of these questions was appropriate as “the law is too undeveloped in this area to enable us to predict with confidence how the New York Court of Appeals would resolve these issues of New York State law presented on appeal.”

We will continue to monitor this case and report on further developments.