In Griffin v. Sirva, Inc., the New York Court of Appeals held that while only "employers" may be liable for criminal conviction history discrimination under Section 296(15) of the New York State Human Rights Law ("NYSHRL"), a covered employer may extend beyond a worker's direct employer to also include entities that exercise "order and control" over the individual's work. The court further held that the "aiding and abetting" provisions of the NYSHRL may apply to entities even where a direct or indirect employment relationship cannot be shown.
As we previously reported, the case 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., which in turn performed work for Allied Van Lines, Inc. pursuant to an agency contract. The terminated employees filed suit under the NYSHRL, alleging that an Allied policy that disqualified employees or contractors convicted of certain felonies from performing jobs for Allied violated the NYSHRL because it did not take into account all the factors enumerated in Article 23-A of the New York Corrections Law, as is required under Section 296(15). The plaintiffs sued both Astro and Allied (as well as Allied's ultimate parent).
On appeal following a grant of summary judgment in favor of Allied and its parent, the Second Circuit certified three questions to the New York high court:
- Does Section 296(15) limit liability for unlawful denial of employment only to a worker's "employer"?
- If so, what is the scope of the term "employer," i.e., does the term extend beyond an employee's "direct employer" to include those who exercise "a significant level of control over the discrimination policies and practices" of the direct employer?
- Does the "aiding and abetting" liability provision contained in Section 296(6) of the NYSHRL apply to Section 296(15), such that an out-of-state principal corporation that causes its New York State agent to discriminate unlawfully may be held liable?
The court answered the first question by holding that liability under Section 296(15) is limited only to an aggrieved party's employer. The court relied on the fact that Section 296(15) imposes liability where there has been a violation of Article 23-A. Article 23-A, in turn, specifies that it applies "to any application by any person for a license or employment at any public or private employer."
The court began its discussion of the second question by noting that a variety of factors are relevant to the determination of whether "employer status" may be conferred on an entity that is not the aggrieved party's direct employer. After examining definitions derived from various sources (including case law decided under Title VII), the court concluded that New York common law applies and that four factors are relevant, i.e., the alleged employer's involvement in: (i) the selection and engagement of the servant; (ii) the payment of salary or wages; (iii) the power of dismissal; and (iv) the power of control of the servant's conduct. Of these factors, the "greatest emphasis [should be] placed on the alleged employer's power to order and control the employee in his or her performance of work."
The court also held that the "aiding and abetting" provision of Section 296(6) "extends liability to persons and entities beyond joint employers, and this provision should be construed broadly." The court placed particular emphasis on the fact that Section 296(6) applies to any "person." Thus, "[u]nlike section 296(15), nothing in the statutory language or legislative history limits the reach of this provision to employers." The court went on to find that Section 296(6) "also applies to out-of-state defendants," citing the NYSHRL's extraterritoriality provision, which provides that the provisions of the law "shall apply . . . to an act committed outside this state against a resident of this state . . . if such act would constitute an unlawful discriminatory practice if committed within this state." The court noted that it has previously held that "[t]he obvious intent of the State Human Rights Law is to protect 'inhabitants' and persons 'within' the state . . . ."
In a dissent, Judge Jenny Rivera stated that "[t]he majority's approach disregards the express statutory terms of the [NYS]HRL and the legislative mandate that it be construed liberally to achieve its remedial antidiscrimination purpose," and that Section 296(15) on its own should be read broadly to impose liability on employers and non-employers alike when a violation is found.
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