Arrest Record Discrimination Laws in New York

Federal law does not directly prohibit arrest-record discrimination. However, the EEOC enforces Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and has taken the position that blanket policies excluding employees with any arrest record may constitute disparate impact discrimination if they disproportionately affect protected classes. The Federal Trade Commission enforces the Fair Credit Reporting Act (15 U.S.C. § 1681), which regulates use of criminal background checks and requires employers to provide notice and obtain consent before conducting background investigations.

Under federal law, employers are not prohibited from considering criminal convictions in hiring, promotion, or termination decisions, but they must assess whether the conviction is substantially related to the job functions. The EEOC has published guidance (EEOC Notice 915.003, updated 2012) recommending that employers assess business necessity and the nature of the crime, time elapsed since conviction, and nature of the job.

There is no federal law protecting individuals from discrimination based on mere arrest without conviction. Federal law focuses on the regulation of background check procedures and the disparate impact of policies that consider criminal history.

New York law provides significantly stronger protections than federal law regarding arrest-record discrimination. New York Executive Law § 296(16) explicitly prohibits employers from discriminating against individuals based on an arrest record that did not result in conviction. This protection applies to all private employers in New York, regardless of size—there is no minimum employee threshold.

Under New York law, employers are prohibited from asking about or considering arrests that did not result in conviction. New York Correction Law § 752 also restricts employer inquiry into arrests or criminal records that were sealed, dismissed, or resulted in acquittal. Employers who violate this law may be liable for discrimination even if they never ask about the arrest directly if they obtain the information through a background check.

New York's law is much broader than federal law because it protects against discrimination based on mere arrest without conviction, whereas federal law only addresses disparate impact of policies that consider any criminal history. The state law creates an absolute prohibition on considering arrests that did not result in conviction, except in very limited circumstances. An employer may only consider a conviction if it is substantially related to the specific job functions and there is a legitimate business reason for the exclusion.

Under New York Human Rights Law § 297, remedies for violation include compensatory damages, lost wages, emotional distress damages, punitive damages, and attorney's fees. The Division of Human Rights can order reinstatement, front pay, back pay, and other equitable relief. The statute of limitations is three years from the date of the alleged discrimination.

The primary exception to New York's arrest-record protection is convictions that directly relate to the job duties. An employer may consider a conviction if it is substantially related to the specific functions of the job and there is a legitimate business reason for exclusion. However, the employer must conduct an individualized assessment rather than applying a blanket policy.

Certain law enforcement, correctional, and security positions have more expansive exceptions. Employers in these fields may consider broader categories of criminal history, though they must still conduct individualized assessments. Additionally, employers licensed under New York law may consider criminal history if required by licensing regulations—for example, healthcare workers and teachers in certain positions.

Arrest records that resulted in conviction are not protected if the conviction is substantially related to the job. However, even conviction-based exclusions must be subject to individualized assessment. Sealed arrest records, dismissed arrests, and acquittals are protected—employers cannot consider these even if they discover the information through a background check.

The at-will employment doctrine does not override these protections. Even in an at-will employment relationship, an employer cannot terminate or refuse to hire based on arrest without conviction. Additionally, retaliation against an employee for filing a discrimination complaint based on arrest record is separately prohibited under New York law.

Step 1 — Document Everything: Keep a detailed record of when you learned the employer obtained or considered your arrest record, how you learned this (conversation, background check report, job application rejection), any communications referencing the arrest, the specific job position involved, the dates of application or employment, and the specific arrest record in question (charge, arrest date, disposition). Request a copy of your background check report if one was conducted.

Step 2 — Internal Complaint Process: Notify your employer in writing that you believe they discriminated against you based on your arrest record without conviction. Provide specific facts: when the discrimination occurred, who was involved, and what happened. Keep copies of all communications. Some employers have internal complaint procedures; review your employee handbook or human resources policies. Filing an internal complaint creates a record and may be required by your company, though it is not required by law. The internal process does not toll your deadline to file with the Division of Human Rights.

Step 3 — File with the New York Division of Human Rights: You must file a complaint within three years of the alleged discrimination. The Division of Human Rights accepts complaints online at www.dhr.ny.gov, by mail to: New York State Division of Human Rights, 1 Fordham Plaza, Fourth Floor, Bronx, NY 10458, or by phone at 1-888-392-3644. You will need to provide: your name, address, and contact information; the employer's name, address, and contact information; the date(s) of the alleged discrimination; a detailed description of what happened; the specific arrest record involved; how the employer obtained or considered the information; names of witnesses; and copies of relevant documents (job application, rejection letter, background check, communications).

Step 4 — Investigation and Conciliation: Once filed, the Division assigns an investigator who will contact you and the employer. The investigator will request documents, conduct interviews, and determine whether probable cause exists that discrimination occurred. This process typically takes 30-90 days but can extend longer if additional investigation is needed. You will be asked to provide evidence that the arrest record was a factor in the adverse employment action. The employer will be asked to explain their decision. If probable cause is found, the Division will attempt conciliation to reach a settlement. If conciliation fails, the case may proceed to a public hearing before an administrative law judge.

Step 5 — Consult an Attorney: Consider consulting an employment law attorney before or during the Division process. An attorney can help you prepare your complaint, gather evidence, and negotiate settlement. Many employment attorneys work on contingency (no upfront cost, they collect a percentage of damages). If your case goes to hearing before the administrative law judge, having an attorney is strongly recommended. Your attorney can present evidence, cross-examine the employer's witnesses, and argue why the employer violated the law. If you prevail, the employer typically must pay your attorney's fees.