In March 2010, at an interview before the National Football League (“NFL”) draft, Miami Dolphins general manager Jeff Ireland asked former Oklahoma State wide receiver and current Dallas Cowboys rookie Dez Bryant whether Bryant’s mother was a prostitute. Bryant answered “no,” and silently fumed at Ireland’s ill-conceived question. (In fact, Dez Bryant’s mother, Angela Bryant, gave birth to Dez at age 15, had reportedly sold drugs, and had served a prison term during Dez’s childhood for selling crack cocaine.)
Last month, after Yahoo Sports broke the story of the Ireland-Bryant exchange, the press and the NFL players’ union harshly criticized Jeff Ireland. Ireland subsequently apologized to Dez Bryant for “us[ing] poor judgment in one of the questions I asked him.”
In New York State, it is lawful, but ill-advised, for an employer to ask a job candidate whether his mother is a prostitute. In general, interview questions and other pre-employment inquiries should concentrate on the candidate’s ability to carry out successfully the job duties essential to the open position. Further, in New York, asking a job applicant whether the applicant was a prostitute may be some evidence of unlawful discrimination against the applicant based on his or her arrest record or based on his or her criminal convictions.
As a general rule, in New York, the information that an employer requests and obtains through the pre-employment process (including both job interviews and written job applications) should be limited to information essential for determining whether a person is qualified for the job. Information about, for example, race, gender, national origin, age and religion are not relevant to such determinations.
In New York, prostitution is a class B misdemeanor. N.Y. Penal Law § 230.00. Section 296(16) of the New York State Human Rights Law, N.Y. Exec. Law § 296(16), renders it unlawful “to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual.” Thus, for example, it violates section 296(16) of the State Human Rights Law for an employer to ask a job applicant whether he or she ever has been arrested for prostitution.
Further, N.Y. Correction Law § 752 prohibits an employer from firing or refusing to hire an individual because he has been convicted of one or more crimes, unless (1) “there is a direct relationship between one or more of the previous criminal offenses and the specific . . . employment held by the individual; or (2) . . . the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
In considering whether the person’s criminal conviction is directly related to the job or whether employment would pose an unreasonable risk, an employer in New York must consider the factors set forth in N.Y. Correction Law § 753. These statutory factors include the public policy of the State to encourage the employment of persons previously convicted of criminal offenses; the specific duties related to the employment sought; the bearing of the conviction on the person’s fitness or ability to perform the job; the time that has passed since the conviction; the age of the person when convicted; any information produced by the person in regard to his or her rehabilitation and good conduct; and the legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.
Accordingly, in New York, asking a job candidate whether the candidate ever has been convicted of prostitution is some evidence of unlawful discrimination based on criminal convictions.
In New York, a lawful inquiry on a written job application concerning the applicant’s criminal background might be as follows:
“Have you ever been convicted of a criminal offense? Do not include convictions that have been annulled, erased, expunged, vacated, set aside, sealed by a court, or referred to a diversion program.
“Note: Conviction of a crime will not necessarily disqualify you from employment. Factors such as age at the time of the offense, the time which has elapsed since the offense, the seriousness and nature of the offense, and rehabilitation and good conduct will be considered when making employment decisions.
“If yes, please explain.”
If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.