New York City agency called on the carpet for employment discrimination

At least on paper, New York City has the strongest legal protections in the Nation for people with a criminal record, and for employers and others who are willing to give them a chance. The State’s vaunted certificates of relief remove mandatory legal disabilities and certify rehabilitation, and are available to any and all defendants.  Governor Cuomo has shown his interest in restoration of rights by adopting a broad reform agenda, and the City’s ban-the-box law is among the broadest in the Nation.  Both State and City have broad human rights laws intended to protect people with a criminal record from unwarranted discrimination.  But with all this web of beneficent laws and rules and policies, some City agencies apparently still have not gotten the word.

In a decision handed down on July 12, a New York judge chastised the City’s Department of Education for refusing to license a woman as a school bus attendant based solely on a 2010 conviction for petty larceny, an action for which he found no basis in fact or law. Judge Peter Moulton’s opinion in Boone v. New York City found that the DOE had acted arbitrarily and capriciously in finding 1) that there was a “direct relationship” between the woman’s conviction and the duties of school bus attendant; and 2) that her employment would post an “unreasonable risk” to children.  Judge Moulton pointed out that the woman had been 20 years old when she participated with co-workers in stealing from her employer Best-Buy, that she had successfully served her probation term and paid full restitution, and that she had otherwise “lived a crime-free life.”  He also found that while DOE had gone through the motions of applying the various statutory factors relevant to the “direct relationship” determination, it had adduced no facts that supported of its ultimate conclusion, or its conclusion that the woman posed a risk to school children riding the bus.

Indeed, in reaching its conclusion the agency appeared to have piled one unwarranted assumption on top of another, writing that her “offense impacts [her] ability to perform her duties if she continues to engage in job-related criminal offenses.”  DOE seems to have been unimpressed by the fact that the woman had been granted a Certificate of Relief from Disabilities, relief specifically intended to create a “presumption of rehabilitation” under applicable New York law.  Judge Moulton remarked that DOE “submits no evidence, nor could it, that petitioner is somehow prone to commit future criminal activity in light of her sole conviction for petit larceny.”

It is discouraging that agencies in a City with the most enlightened laws and the most progressive administrators, still feel they can deny employment opportunity to convicted individuals in such an unreasoned and mean-spirited fashion.  If judicial intervention is required to compel agencies to do such an obvious right thing, it will be a long slow march to end conviction-related employment discrimination.

The New York Law Journal reported that the City was considering an appeal.