In Matter of Belgrave v. City of New York, 2016 NY Slip Op 01548 (App. Div. 1st Dept. March 3, 2016), the First Department addressed an issue of first impression, namely
whether a law enforcement agency (here the NYPD), may refuse to hire an applicant seeking employment with that agency as a civilian, without regard to the criteria set forth in Correction Law article 23-A, solely on the basis of the applicant’s prior criminal conviction.
Here, the petitioner applied for a position as a Police Communications Technician (i.e., 911 dispatcher); her application was denied. She argued that “by failing to consider enumerated statutory factors, respondents’ determination violated her rights under Correction Law article 23-A and the New York State and City Human Rights Laws.”
The court assumed, for purposes of the appeal, that the only reason for the denial was that she has a prior criminal conviction (specifically, second-degree assault, a Class D felony).
It held “that the protections of article 23-A do not apply to a civilian seeking to be hired by NYPD because “membership in any law enforcement agency” is expressly exempted from the statutory definition of “employment” pursuant to section 750(5) of the Correction Law.”
The law:
[New York Correction Law] Article 23-A is a remedial statute, enacted to eliminate the effect of bias against ex-offenders that prevented them from obtaining employment, while also protecting society’s interest in assuring performance by reliable and trustworthy persons. Article 23-A broadly provides that employers, whether public or private, are prohibited from unfairly discriminating against persons previously convicted of one or more criminal offenses, unless after consideration of certain enumerated statutory factors, the employer determines that there is direct relationship between the offense(s) and the duties or responsibilities inherent in the license or employment sought or held by the individual, or such employment or license poses an unreasonable risk to the public, etc. (Correction Law §§ 752, 753). The statute defines the term “employment” as follows: “(5) Employment means any occupation, vocation or employment, or any form of vocational or educational training. Provided, however, that “employment” shall not, for the purposes of this article, include membership in any law enforcement agency”. (Emphasis added.)
This case turned on the interpretation of the term “membership.”
The court declined to interpret the term narrowly, noting that “[h]ad the legislature intended that the exemption from article 23-a only apply to persons seeking to enforce laws (i.e. uniformed police officers or peace officers), but not the civilians employed by the same agencies or departments, it could have specifically so provided.”
Thus, since “the exemption within article 23-A applied to petitioner’s application for employment/membership with the NYPD, NYPD was not required to consider the statutory factors set forth in Correction Law §§ 752, 753.”