February 2016, CDIA filed an amicus brief with the New York Court of Appeals in Griffin v. Sirva, Inc. In short, CDIA urges the Court to agree that the state Human Rights Law applies to “employers” only, and not to third parties, like background check companies.The case presents three certified questions to the New York Court of Appeals from the U.S. Court of Appeals for the Second Circuit relating to the scope and applicability of two statutes that impact the use of criminal records in applications for employment in New York. First is the New York Human Rights Law (HRL), which prohibits discrimination under a variety of circumstances, including the misuse of criminal record data in hiring decisions. N.Y. Exec. Law Section 296(15). Second is New York’s law permitting the limited use of criminal record data in determining whether to hire an applicant. N.Y. Corr. Law Sec. 752.
The three certified questions before the court are: (1) is Section 15 of the HRL limited to “employers” (or may a third party be liable for discriminatory hiring practices); (2) if limited to “employers”, what is the test to determine if someone is the “employer”; and (3) may aiding and abetting liability be imposed on “an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of §296(15)”?
In the facts presented in the case, a Astro employed two movers for a number of years in its business. Each person had a prior criminal conviction. At one point, Allied Trucking enters into a contract with Astro under which Astro agreed to serve as Allied’s limited agent and fulfill Allied’s moving contracts in a local area. In the contract, Astro agreed that, in fulfilling services for Allied, it would not use any employees who do not meet Allied’s background screening requirements. Upon winning the contract, Astro performed a background check on the two employees, who do not meet Allied’s requirements. Astro discharges both workers. Plaintiffs sue Astro, Allied and Astro’s parent company (which was the entity with the contract with HireRight, the background screening company). The background screening company is not named in the suit.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More