NYPD Officer Sufficiently Alleges Arrest History Discrimination Claim Under the NYS Human Rights Law

In Alegre v. The City of New York, No. 157532/2022, 2024 WL 2747895 (N.Y. Sup Ct, New York County May 28, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of arrest record discrimination asserted under the New York State Human Rights Law.

From the decision:

Finally, Defendants move to dismiss Plaintiff’s cause of action for arrest history discrimination. With the enactment of Executive Law § 296, “the Legislature made it an unlawful discriminatory practice [], except in specified cases, for any person or agency to inquire into or take adverse action in connection with the licensing, employment or providing of credit or insurance to an individual in regard to a favorably terminated criminal action” (People v Patterson, 78 NY2d 711, 715 [1991]), as defined by CPL § 160.50(2).7 Similarly, Administrative Law § 8-107 made it an unlawful discriminatory practice for an employer to discriminate against any person “based on pending arrests and criminal accusations, and criminal convictions pending and during employment” (Administrative Law § 8-107[10]) and “for any person to make any inquiry in writing or otherwise about, or deny employment to, any applicant or act adversely upon any employee by reason of an arrest of or criminal accusation against such applicant or employee when such inquiry, denial or adverse action is in violation of subdivision 16 of section 296 of article 15 of the executive law” (Administrative Law § 8-107[11]).

Although Executive Law § 296(16) permits pre-employment inquiry into the arrest records of applicants for law enforcement positions, courts have held that police officers may maintain an action for arrest history discrimination under Executive Law § 296 in connection with arrests that occur during the course of their employment (see Annabi v Cassio, 269 AD2d 551, 551 [2d Dept 2000][Plaintiff police officer stated a cause of action for arrest history discrimination where the officer alleged that his employer took adverse employment actions against the plaintiff based on the fact that the plaintiff was arrested, although the arrest had not resulted in a conviction]; Sheriff’s Dept v State Div. of Hum. Rts., 129 AD2d 789, 790 [2d Dept 1987]). However, the relevant provisions of the NYCHRL related to arrest history discrimination do not apply to police officers (Administrative Code § 8-107[10][b], [c], [g]; Garcia v City of New York, 2023 NY Slip Op 32966[U][Sup Ct, NY County 2023]). Therefore, dismissal is appropriate with respect to the cause of action for arrest history discrimination under the NYCHRL.

Incorporating the facts elucidated in R.C. and other matters, Plaintiff alleges that the NYPD had a policy or practice of accessing and disclosing sealed arrest records to prosecutors and using these sealed arrest records against NYPD employees for internal disciplinary proceedings, in violation of the sealing statutes (proposed amended complaint ¶ 9). He further alleges that the NYPD accessed his arrest records, which were sealed as a result of his plea agreement, in violation of CPL §§ 160.50, 160.55, and 160.60 and improperly utilized the records in a discriminatory fashion in his disciplinary proceeding, which resulted in his constructive discharge. These allegations are sufficient to plead a cause of action for arrest history discrimination.

The City alleges Plaintiff failed to state a cause of action for arrest history discrimination because he did not plead an adverse employment action or set forth any facts suggesting that he was treated less well because of his protected status or that defendants were motivated by discriminatory animus on the basis of Plaintiff’s arrest record. As set forth above, the Plaintiff pled an adverse employment action on the basis of constructive discharge (see supra at 11). For the purposes of this motion, the constructive discharge allegations, read in conjunction with the factual allegations that the NYPD accessed Plaintiff’s arrest records in violation of the sealing statutes and the preliminary injunction issued in R.C., are sufficient to infer discriminatory animus (see Annabi v Cassio, [269 AD2d at 551).

Based on this, the court denied defendant’s motion to dismiss this cause of action.

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