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Criminal History Discrimination in New York: Article 23-A Protections

Criminal history discrimination occurs when an employer rejects, fires, or otherwise disadvantages you based on your arrest or conviction record without considering whether the conviction actually relates to the job. New York has some of the nation’s strongest protections against criminal history discrimination, providing second chances for people with records.

New York Correction Law Article 23-A strictly limits when employers can consider criminal history, requiring individualized assessments that weigh the nature of the conviction, how long ago it occurred, evidence of rehabilitation, and the job’s specific requirements. In NYC, the Fair Chance Act (“ban the box”) adds additional protections, prohibiting criminal history inquiries until after a conditional job offer.

Why This Matters in New York

Nearly one in three American adults has some type of arrest or conviction record. Blanket exclusions of people with criminal histories create massive barriers to employment, perpetuate cycles of poverty and recidivism, and disproportionately harm communities of color affected by over-policing and discriminatory criminal justice practices.

New York’s protections matter because:

Individualized assessment required: Employers cannot apply blanket bans on hiring people with records. They must consider each person’s specific situation.

Eight-factor analysis: Article 23-A requires employers to weigh specific factors before denying employment based on criminal history.

Ban the box: NYC and many other New York jurisdictions prohibit asking about criminal history until after a conditional job offer.

No federal analog: Title VII doesn’t directly address criminal history discrimination, making New York’s state protections crucial.

Rehabilitation consideration: Employers must consider evidence of rehabilitation, time passed, and age at conviction.

Disproportionate impact protection: Criminal history policies that disproportionately exclude people of certain races may violate anti-discrimination law.

Strong enforcement: New York agencies actively enforce criminal history discrimination protections.

What Is Article 23-A?

New York Correction Law Article 23-A prohibits public and private employers from denying employment to people with criminal convictions unless there’s a direct relationship between the conviction and the job, or employing the person would create an unreasonable risk.

When Article 23-A Applies

Covered employers: All New York employers (no minimum employee threshold)

Covered records:

  • Criminal convictions (felonies and misdemeanors)
  • Youthful offender adjudications
  • Certain sealed records (though employers often can’t access these)

Covered employment decisions:

  • Hiring
  • Promotion
  • Licensing (for some occupations)
  • Termination or discipline after discovering past conviction

When Criminal History Can Be Considered

Employers can only deny employment based on criminal history if they prove:

1. Direct relationship: The conviction relates directly to the specific job duties, OR

2. Unreasonable risk: Employing the person in the position would create an unreasonable risk to property or public safety

This is a high bar. Employers must conduct individualized assessments, not apply blanket policies.

The Eight-Factor Analysis

Before denying employment based on criminal history, employers must consider these eight statutory factors:

1. Public policy of New York favoring rehabilitation: Recognition that people with records deserve second chances and opportunities for reintegration.

2. Specific duties and responsibilities of the job: What does this particular position actually require? Does the conviction relate to these specific duties?

3. Bearing, if any, of the criminal offense on fitness for the job: How does the conviction relate to job performance or risks? A theft conviction may relate to a cashier position but not to outdoor landscaping work.

4. Time elapsed since the conviction: How long ago did the conviction occur? A 15-year-old conviction is less relevant than a recent one.

5. Age at the time of conviction: Was the person a teenager or young adult when convicted? Youthful mistakes should weigh less heavily.

6. Seriousness of the offense: Was it a minor misdemeanor or a serious felony? Traffic offenses weigh differently than violent crimes.

7. Information provided by applicant about rehabilitation: Has the person completed education, maintained employment, participated in treatment programs, or otherwise demonstrated rehabilitation?

8. Employer’s legitimate interest in protecting property and public safety: Does the employer have genuine concerns about specific risks this person would pose in this specific job?

Individualized Assessment Requirement

Employers must apply these factors to each applicant individually. Blanket policies like “we don’t hire anyone with felonies” violate Article 23-A.

NYC Fair Chance Act: Ban the Box

In New York City, the Fair Chance Act (also called “ban the box”) adds stronger protections.

Prohibited Pre-Offer Inquiries

Employers cannot:

  • Ask about criminal history on job applications
  • Inquire about criminal history during interviews
  • Conduct criminal background checks before making a conditional job offer
  • Make any statements suggesting people with criminal histories will not be considered

Conditional Offer Requirement

Only after making a conditional job offer can NYC employers:

  • Ask about criminal history
  • Conduct a criminal background check
  • Consider convictions in the hiring decision

Written Notice Requirements

If an employer plans to rescind an offer based on criminal history, they must:

1. Provide written notice including:

  • The conviction(s) at issue
  • A copy of any background check report
  • Explanation of how the conviction relates to the job or creates unreasonable risk
  • Article 23-A eight-factor analysis

2. Give applicant opportunity to respond:

  • At least 3 business days to respond
  • Applicant can provide evidence of rehabilitation, errors in records, or other information

3. Hold position open:

  • Cannot fill the position during the 3-day response period
  • Must consider applicant’s response before final decision

4. Provide written final decision:

  • If still denying employment, must provide written explanation
  • Must include notice of right to file complaint with NYC Commission on Human Rights

Exceptions to Ban the Box

Some positions are exempt from Fair Chance Act protections:

  • Jobs requiring criminal background checks by law
  • Law enforcement positions
  • Positions with vulnerable populations (with limitations)
  • Jobs where people would have unsupervised access to trade secrets or confidential information

Even for these exceptions, Article 23-A’s eight-factor analysis still applies.

What Employers Cannot Do

Blanket bans: “We don’t hire anyone with felonies” violates Article 23-A. Each applicant deserves individualized consideration.

Irrelevant conviction exclusions: Denying employment based on convictions with no relationship to job duties (like excluding someone with a 10-year-old marijuana conviction from warehouse work).

Failure to consider rehabilitation: Ignoring evidence of education, employment history, treatment completion, or other rehabilitation.

Asking too early: In NYC, asking about criminal history before conditional offer.

Insufficient analysis: Making criminal history decisions without conducting proper eight-factor analysis.

Disparate impact: Policies that disproportionately exclude people of certain races, even if facially neutral.

Considering non-convictions: Using arrests without convictions, dismissed charges, or sealed records.

Real-World Examples of Criminal History Discrimination

Blanket felony ban violation: A delivery company has a policy stating “no applicants with felony convictions will be hired.” An applicant with a 12-year-old non-violent drug conviction applies. He’s been steadily employed since release, completed rehabilitation, and has no subsequent arrests. The company rejects him without individualized consideration. This blanket ban violates Article 23-A.

Irrelevant conviction exclusion: A landscaping company rejects an applicant with a 15-year-old shoplifting conviction. The position involves outdoor maintenance work with no access to customer homes, money handling, or inventory. The employer provides no analysis of how shoplifting relates to landscaping duties. This violates Article 23-A’s direct relationship requirement.

Failure to consider rehabilitation: An applicant with a 7-year-old conviction completed a bachelor’s degree in prison, worked steadily for 5 years post-release, volunteered with at-risk youth, and has no subsequent arrests. The employer denies his application based solely on the conviction without considering any rehabilitation evidence. This violates Article 23-A’s factor #7 requirement.

NYC ban-the-box violation: A New York City employer’s application form includes a checkbox asking “Have you ever been convicted of a crime?” An applicant checks “yes” and never receives an interview despite strong qualifications. The pre-offer criminal history inquiry violates the Fair Chance Act.

Insufficient notice violation: A NYC employer conducts a background check after a conditional offer, discovers a conviction, and immediately rescinds the offer via brief email stating “we cannot hire individuals with criminal records.” No eight-factor analysis is provided, and the applicant is given no opportunity to respond. This violates Fair Chance Act procedural requirements.

Disproportionate impact: A company’s policy excludes anyone with drug-related convictions from all positions. Due to well-documented racial disparities in drug enforcement, this policy excludes Black and Latino applicants at much higher rates than white applicants. This disparate impact may violate anti-discrimination law even if the policy appears neutral.

Arrest-based denial: An employer discovers an applicant was arrested three years ago but never convicted (charges were dismissed). The employer rejects the applicant based on the arrest. Using arrests without convictions violates New York law.

Position-holding failure: A NYC employer makes a conditional offer, discovers a conviction, sends notice of intent to rescind, but fills the position before the applicant’s 3-day response period expires. This violates Fair Chance Act requirements to hold the position during the response period.

Vague relationship claim: An employer rejects an applicant with a 10-year-old assault conviction for an office administration job, claiming “violence” makes him unsuitable. The position involves no security duties, no vulnerable population contact, and no identified safety risks. The employer’s vague assertion without specific direct relationship analysis violates Article 23-A.

Refusal to update after expungement: An employee had a conviction expunged/sealed under New York law. The employer, who hired before the sealing, becomes aware of the old (now-sealed) record and terminates the employee. Using sealed records violates New York law.

Age-at-conviction ignored: An applicant committed a crime at age 19 (now age 35). The employer treats the 16-year-old conviction with no consideration of the applicant’s youth at the time or substantial time elapsed. This fails to properly weigh Article 23-A factors #4 and #5.

Legitimate relationship example (lawful): A bank rejects an applicant with a recent embezzlement conviction for a position handling large cash transactions. The employer conducts an eight-factor analysis showing direct relationship between financial fraud and cash-handling duties, recent timing, and specific property protection concerns. This lawful denial properly applies Article 23-A.

Unreasonable risk example (lawful): A childcare center rejects an applicant with a recent child abuse conviction for a daycare worker position. The direct relationship to vulnerable population protection and unreasonable risk are clear. Even with procedural compliance, this denial is lawful under Article 23-A.

How Criminal History Relates to Other Protected Classes

Criminal history discrimination often intersects with race and national origin discrimination.

Disparate Impact

Due to well-documented racial disparities in arrests, prosecutions, and convictions, criminal history policies can have disparate impact on people of color even if facially neutral.

If your policy disproportionately excludes Black or Latino applicants, the employer must show the policy is job-related and consistent with business necessity, and no less discriminatory alternative exists.

Examples of potentially discriminatory policies:

  • Blanket bans on all convictions (disparate impact without business justification)
  • Exclusions for drug-related offenses (given racial disparities in drug enforcement)
  • Long look-back periods (10+ years) without individualized consideration
  • Policies treating all felonies equally regardless of nature

Proving Disparate Impact

You may prove criminal history discrimination through:

  • Statistical evidence showing the policy excludes protected classes at higher rates
  • Expert testimony about racial disparities in criminal justice
  • Evidence the employer’s stated justification doesn’t match actual practices
  • Proof that less discriminatory alternatives exist

What to Do If You Face Criminal History Discrimination

1. Know when employers can ask: Understand NYC ban-the-box timing or other local protections. Don’t volunteer criminal history information before required.

2. Prepare your explanation: Be ready to discuss:

  • Time elapsed since conviction
  • Your age at the time
  • Rehabilitation (education, employment, treatment, community involvement)
  • Why the conviction doesn’t relate to the job
  • Evidence you’ve changed

3. Document rehabilitation: Gather evidence of:

  • Completion of sentence/probation/parole
  • Education or vocational training
  • Employment history since conviction
  • Treatment or counseling completion
  • Letters of recommendation
  • Community service or volunteer work

4. Request written reasons: If denied employment, ask for written explanation of how your conviction relates to the specific job. Employers should provide Article 23-A analysis.

5. Respond to notices: If you receive notice of intent to deny based on criminal history (required in NYC), use your 3-day response period to provide rehabilitation evidence, correct record errors, or explain circumstances.

6. Identify discrimination: Look for signs the employer failed to conduct proper analysis:

  • No consideration of eight factors
  • Blanket policy application
  • No relationship between conviction and job
  • Failure to consider rehabilitation
  • Premature criminal history inquiry (in ban-the-box jurisdictions)

7. File a complaint:

  • NYC workers: File with NYC Commission on Human Rights for Fair Chance Act violations
  • All NY workers: File with NYS Division of Human Rights for Article 23-A violations
  • Consider disparate impact claims if the policy disproportionately excludes your racial group

8. Consult an attorney: Employment attorneys can help you understand whether denial was lawful, gather evidence, and pursue legal action.

9. Consider expungement: Some convictions may be eligible for sealing or expungement under New York law, making them unavailable to employers.

Common Questions About Criminal History Discrimination

Can employers ask about arrests without convictions?

Generally no. New York law prohibits using arrests that didn’t result in convictions. Sealed and expunged records also cannot be used.

How far back can employers look?

There’s no specific time limit, but time elapsed is one of eight required factors. Very old convictions (10+ years) with evidence of rehabilitation should weigh less heavily. Some jurisdictions have specific look-back period limits.

Do I have to disclose expunged or sealed convictions?

No. If a conviction has been sealed or expunged under New York law, you can legally answer “no” to criminal history questions about that conviction.

What if my conviction was in another state?

Article 23-A applies to convictions from any jurisdiction. Out-of-state convictions must be evaluated using the same eight-factor analysis.

Can I be fired if my employer discovers a conviction after hiring me?

Only if the conviction would have lawfully prevented hiring in the first place (direct relationship or unreasonable risk under Article 23-A). Employers cannot fire you based on convictions that don’t meet this standard.

Do all New York employers have to follow ban-the-box rules?

Ban-the-box timing requirements vary by jurisdiction. NYC has comprehensive Fair Chance Act protections. Other counties and cities may have their own ordinances. Article 23-A applies statewide to all employers.

What if the job requires a background check by law?

Some positions (law enforcement, positions with vulnerable populations, jobs requiring specific licenses) have mandatory background check requirements. Even for these, Article 23-A’s eight-factor analysis still applies.

Can employers ask about pending charges?

Pending charges without convictions cannot be used to deny employment. You’re presumed innocent until proven guilty.

How do I prove my criminal history discrimination claim?

Show:

  1. You were denied employment
  2. The denial was based on criminal history
  3. The employer failed to conduct proper Article 23-A analysis, or
  4. No direct relationship or unreasonable risk existed, or
  5. The policy has disparate impact on your protected class

Related Topics

Legal Disclaimer

This guide provides general information about criminal history discrimination under New York Correction Law Article 23-A and related laws. It is not legal advice and does not create an attorney-client relationship. Criminal history discrimination law is complex and highly fact-specific. Your situation may involve unique circumstances affecting your rights.

For advice about your specific situation, consult a qualified New York employment attorney. Many offer free consultations.

Deadlines apply to filing discrimination complaints. Don’t delay in seeking legal help.

Sources and Additional Resources: