New York City Fair Chance Act
NYC Commission on Human Rights Legal Enforcement Guidance on the Fair Chance Act, Local Law No. 63 (2015)
Note: This guidance has been updated to reflect amendments to N.Y. Exec. L. § 296(16) that are incorporated by reference in New York City Human Rights Law § 8-107(11), and take effect July 11, 2019. 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.”1
The New York City Commission on Human Rights (the “Commission”) is the City agency charged with enforcing the NYCHRL. Individuals interested in vindicating their rights under the NYCHRL can choose to file a complaint with the Commission’s Law Enforcement Bureau within one (1) year of the discriminatory act or file a complaint in New York State Supreme Court within three (3) years of the discriminatory act. The NYCHRL covers employers with four or more employees.
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.
I Legislative Intent
The FCA reflects the City’s view that job seekers must be judged on their merits before their mistakes. The FCA is intended to level the playing field so that New Yorkers who are part of the approximately 70 million adults residing in the United States who have been arrested or convicted of a crime2 “can be considered for a position among other equally qualified candidates,” and “not overlooked during the hiring process simply because they have to check a box.
”3 Even though New York Correction Law Article 23-A (“Article 23-A”) has long protected people with
1 Local Law No. 85 (2005). “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably worded to provisions of this title have been so construed.” N.Y.C. Admin. Code § 8-130. 2 Gov’tl Affairs Division of the N.Y. City Council, Committee Report on Int. No. 318-A, S. 2015-5, at 2 (June 9, 2015) (“Civil Rights Committee’s Report”), available at http://legistar.council.nyc.gov/View.ashx?M=F&ID=3815856&GUID=59D912BA-68B5-429C-BF39-118EB4DFAAF5. 3 Testimony of Gale A. Brewer, Manhattan Borough President on Int. No. 318 to Prohibit Employment Discrimination Based on One’s Arrest Record or Criminal Conviction at 2 (Dec. 3, 2014) (emphasis in original), available at http://legistar.council.nyc.gov/View.ashx?M=F&ID=3410802&GUID=7D143B7E-C532-41EF-9A97-04FD17854ED7.
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