Anti-Discrimination Laws Protecting Individuals with HIV/AIDS, Alcohol/Drug Problems, and Criminal Records

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• Anti-Discrimination Laws Protecting Individuals
  with HIV/AIDS, Alcohol/Drug Problems, and
  Criminal Records

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This training is for. . .

• Community services providers whose clients
  include people who are living with, at risk of or
  affected by HIV and AIDS, and who may also have
  histories of alcohol or drug problems and/or
  criminal record histories.

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This training is about. . .

• Laws prohibiting discrimination against people
  with disabilities in
• -- Employment
• -- Housing
• -- Public accommodations health care,
  schools, etc.
• -- Other benefits and services
• Laws prohibiting discrimination based on a
  criminal record.

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Part One

• What Is Discrimination?

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DISCRIMINATION IS . . .

• treating a person less favorably/differently
  because of his/her STATUS
• . . . when the law does not permit it.

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DISCRIMINATION IS . . .

• Examples of status protected by law
• Race
• Age
• Disability
• Gender
• Criminal Record History
• New York State and City laws only

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DISCRIMINATION EXAMPLES

• 1. Employer has a policy we dont hire anyone
  with a criminal record, no matter what it was for
  or how old it is
• 2. Camp has a policy we dont admit kids who
  are HIV
• 3. Doctors office wont treat a man for a
  stomach problem because he is in a methadone
  maintenance program

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DISCRIMINATION A CASE-BY-CASE DECISION

• Should look at each person individually.
• Should NOT make generalizations about a person
  based on status (e.g. based on the mere fact that
  the person has a disability or has a criminal
  record).

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DISCRIMINATION IS NOT . . .

• . . . treating a person less favorably/different
  ly because of his/her
• CONDUCT

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Its not discrimination to . . .

• Fire a person who causes an accident at
  work because she is under the influence of
  alcohol or drugs.
• Refuse to hire a person for a job she is not
  qualified for, even if she has AIDS.
• 3. Evict a tenant who started a fire while high.

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Todays Presentation/Discussion

• Focuses on discrimination due to
• Disability
• Criminal Record

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Part Two

• Which Laws Prohibit Discrimination Against People
  with HIV/AIDS or Alcohol/Drug Histories?

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THE LAWS DISABILITY DISCRIMINATION

• FEDERAL LAWS
• Americans with Disabilities Act
• (42 U.S.C. 12101 et seq.)
• Rehabilitation Act of 1973
• (29 U.S.C. 701-794)

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THE LAWS DISABILITY DISCRIMINATION

• FEDERAL LAWS (cont.)
• Fair Housing Amendments Act of 1988
• (42 U.S.C. 3601 et seq.)

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THE LAWS DISABILITY DISCRIMINATION

• NEW YORK STATE LAW
• ?New York State Human Rights Law
• N.Y. Exec. Law. 290 et seq.
• NEW YORK CITY LAW
• ?New York City Human Rights Law
• N.Y.C. Admin. Code, Article 8, 8-102, 8-107

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FEDERAL LAWS

• WHO IS PROTECTED BY THESE LAWS?

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• ? a person with a DISABILITY
• ? a person with a history (record) of a
  disability
• ? a person regarded as having a disability
• ? a program serving persons with disabilities

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Who is Protected?

• Proving disability under anti-discrimination
  laws is NOT same as proving disability for
  government benefit programs, like SSI.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• What is a disability?
• a physical or mental impairment that
  substantially limits one or more major life
  activities
• a history (record of) such an impairment, or
• being regarded as having such an impairment

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• What is a disability? (cont.)
• Court will make an individualized determination.
  No automatic disabilities.
• Must prove impairment that substantially limits
  or once limited one or more of her or his major
  life activities, such as caring for self,
  walking, talking, working, and major bodily
  functions.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Is HIV status or AIDS a disability?
• generally, YES
• case-by-case decision

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Who is Protected? (cont.)

• 2008 Amendments to the ADA
• Its now easier to prove disability as a result
  of the ADA Amendment Acts of 2008.
• This law which took effect 1/1/09 clarifies
  that Congress meant the term disability to be
  interpreted broadly.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• HIV/AIDS as disabilities
• courts conditions from asymptomatic infection
  to AIDS generally disabilities. Under ADAA,
  will be easier to prove.
• perceived HIV status/AIDS also covered.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Is alcoholism a disability?
• past alcohol abuse/alcoholism often YES
• current alcohol abuse/alcoholism often YES
• Depends on whether the alcohol abuse/alcoholism
  substantially limits (or once limited) that
  persons major life activities.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Is drug addiction a disability?
• past addiction YES, if it substantially it
  substantially limited one or more of that
  persons major life activities. Method of
  recovery is irrelevant to proving disability.
  Irrelevant whether
• successfully completed drug treatment
• currently in treatment
• achieved recovery without treatment

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Is drug addiction a disability? (cont.)
• -- current illegal use of drugs NO
• Federal laws do not protect individuals who are
  currently engaging in the illegal use of drugs.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• What does illegal use of drugs mean?
• -- use of illegal drugs (e.g. heroin, cocaine)
  or
• -- unlawful use of prescription drugs
• ? no prescription
• ? fraudulent prescription
• ? misuse of prescription drugs

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• When is illegal use of drugs current?
• No definition in the law itself
• Question is is the use recent enough so that
  it is reasonable to assume that it is an ongoing
  problem?

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• When is illegal use of drugs current? (cont.)
• Many courts have found it reasonable to assume
  that illegal use of drugs was current if
• used within the last few months
• risk of relapse/pattern of relapse may support
  conclusion that use is ongoing problem.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• What about people in methadone maintenance
  treatment or other medication assisted
  treatment (MAT)? Are they protected by
  federal laws?

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Answer
• YES because
• People in MAT have a record of an impairment
  that substantially limited a major life activity
  (i.e., the dependence on heroin or other
  opioids), or
• others regard them as currently having an
  impairment that substantially limits a major life
  activity (i.e., because others think that people
  in MAT are just like people currently dependent
  on illegal drugs)

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Example Mary
• Mary was in an auto accident two years ago and
  became dependent on narcotic pain medication.
  One year ago, she entered a methadone program.
  She has not used any drugs illegally since she
  began treatment. Is she protected by the ADA and
  other federal anti-discrimination laws?

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• ANSWER Mary
• YES. Anti-discrimination laws protect people
  with a record of, current, or perceived
  disability. Mary is an individual with a
  disability if
• Her addiction had substantially limited a major
  life activity (record of a disability) or . . .

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• ANSWER Mary (cont.)
• Other people treat Mary as if her current
  methadone treatment substantially limits her
  major life activities (e.g., assume that she will
  fall asleep at work or be high because she is in
  a methadone program).
• This is being regarded as having a disability.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Example
• Julie uses cocaine after work, but no problems
  on the job. Her boss finds out about her cocaine
  use and then fires her. Is Julie protected by
  federal laws?

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Answer
• NO, Julie is NOT protected by federal law
  because she is currently engaging in the illegal
  use of drugs. This is true even if she has no
  problems with her work.

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Example
• Scott has been in a methadone maintenance
  program for six years. He has a commercial
  drivers license, a clean driving record and no
  history of any arrests. Scott applies to be an
  interstate truck driver, and reveals that he is
  prescribed methadone as part of treatment. The
  trucking company turns him down because he is
  taking methadone. Legal?

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FEDERAL LAWSWHO IS PROTECTED? (cont.)

• Answer
• Yes. Federal DOT regulations Disqualify
  persons from interstate license if taking
  methadone.
• Intrastate license requirements set by State law.
  New York generally follows the Federal
  guidelines.

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FEDERAL LAWS (cont.)

• WHO MUST FOLLOW THESE LAWS?

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FEDERAL LAWSWHO MUST FOLLOW THESE LAWS? (cont.)

• Who must follow the Rehab Act?
• Federal government
• Groups/agencies/programs that receive federal
  funding, either directly or indirectly

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FEDERAL LAWSWHO MUST FOLLOW THESE LAWS? (cont.)

• Who must follow the ADA?
• ? Private employers with more than 15 employees.
  They are covered by Title I of the ADA.
• State and local government agencies. They are
  covered by Title II of the ADA.
• ? Places of public accommodation, which are
  private entities, open to the public (e.g.
  hospitals, doctors offices, day care, hotels).
  They are covered by Title III of the ADA.

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FEDERAL LAWSWHO MUST FOLLOW THESE LAWS? (cont.)

• Who must follow the Fair Housing Amendments Act?
• Most housing providers (landlords), whether
  public or private
• Others who sell or rent housing (brokers)

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NEW YORK STATE AND CITY LAWS
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STATE LAW NEW YORK

• NEW YORK STATE HUMAN RIGHTS LAW
• WHO IS PROTECTED?
• Similar to federal laws. Protects a person with
  a handicap or disability.

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NEW YORK STATE HUMAN RIGHTS LAW (cont.)

• Is HIV Status or AIDS a Disability?
• YES
• The law protects people known or believed (even
  incorrectly) to have HIV infection or related
  illness.
• Scardace v. Mid-Island Hosp., 21 A.D.3d 363, 800
  N.Y.S.2d 42 (2d Dept 2005) (perceived HIV status)

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NEW YORK STATE HUMAN RIGHTS LAW (cont.)

• Is Alcohol or Drug Abuse/Addiction a
  Disability?
• YES. McEniry v. Landi, 84 N.Y.2d 554 (1994)
  (alcohol dependency qualifies as a disability)
• But . . . are people engaging in current illegal
  use of drugs protected?
• NO same as federal law.

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NEW YORK STATE HUMAN RIGHTS LAW (cont.)

• Example
• Michael is a NYC firefighter. He tested
  positive for cocaine during a random drug test,
  and is fired. Michael states that his drug
  addiction stems from his alcoholism and seeks
  reinstatement on the basis of his disability.
  What result?

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NEW YORK STATE HUMAN RIGHTS LAW (cont.)

• Answer
• Dismissal from job affirmed. Although alcohol
  dependency qualifies as a disability under the
  Human Rights Law, drug abuse does not. Michael
  failed to establish that his drug abuse was
  causally related to his alcoholism, and thus did
  not state a prima facie case of employment
  discrimination under the NYS HRL.
• Kirk v. City of New York, 47 A.D.3d 406, 848
  N.Y.S.2d 169 (Sup. Ct., N.Y. Co., 2008)

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NEW YORK STATE HUMAN RIGHTS LAW (cont.)

• WHO MUST FOLLOW THIS LAW?
• ? public and private employers with 4 or more
  employees
• ? public accommodations
• ? most housing and social service providers.

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New York City Human Rights Law

• WHO IS PROTECTED?
• a person with a disability
• in New York City

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New York City Human Rights Law (cont.)

• Is HIV status or AIDS a Disability under the
  NYC HRL?
• YES. The Law protects people known or believed
  (even incorrectly) to have HIV/AIDS.

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New York City Human Rights Law (cont.)

• Is Alcohol or Drug Abuse/Addiction a Disability
  under the NYC HRL?
• YES if
• 1. person is recovering or has recovered
• 2. person is currently free of such abuse
  (includes alcohol abuse!)
• But . . . person currently engaged in illegal
  use of drugs is not considered disabled.

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New York City Human Rights Law (cont.)

• Who must follow this law?
• ? public and private employers (with 4 or more
  employees) operating in New York City
• ? public accommodations in New York City
  including health care and human service providers
• ? most public and private housing providers in
  New York City.

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Part Three

• What RIGHTS Do These Laws Give People With
  HIV/AIDS, or Past or Current Alcohol/Drug
  Problems?

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What rights do these laws give?

• EMPLOYMENT

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What rights do these laws give? EMPLOYMENT

• No employer shall discriminate against a
  qualified individual with a disability.

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What rights do these laws give? EMPLOYMENT
(cont.)

• What does qualified mean?
• Meets qualification standards for job
• Able to perform essential job duties with or
  without a reasonable accommodation

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What rights do these laws give? EMPLOYMENT
(cont.)

• What is a reasonable accommodation?

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What rights do these laws give? EMPLOYMENT
(cont.)

• ANSWER
• Change(s) to work setting, hours or workplace
  rules made so that a disabled person can perform
  job duties
• Must not cause employer undue hardship e.g.
  significant cost, need to make fundamental change
  to way company operates

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer (cont.)
• Individual with a disability must request the
  reasonable accommodation.
• An employee cant hold an employer liable for
  failing to provide an accommodation that the
  employee hasnt requested in the first place.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer (cont.)
• Employer and employee should engage in
  interactive process, where employer may
• Require reasonable documentation of disability
  and the need for an accommodation
• Suggest a different accommodation than the one
  the employee wants, if it is effective

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer (cont.)
• Employer has right to request medical records
  confirming disability (but only those records
  can not demand entire medical file). If
  employee does not provide them, the request can
  be denied.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer (cont.)
• Employer must maintain the confidentiality of
  medical information including alcohol drug
  treatment or HIV information.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Example of reasonable accommodation
• ? Permitting HIV employee who is easily fatigued
  to move from night shift to day shift
• ? Allowing leave of absence for alcoholism
  treatment especially if employer permits leave
  for individuals with other disabilities
• ? Change in job duties if necessary to enable
  employee to perform essential job duties

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What rights do these laws give? EMPLOYMENT
(cont.)

• If employer does grant leave of absence for
  treatment purposes, employer has right to monitor
  recovery, e.g.
• require fitness for duty evaluation
• request documentation from treatment provider

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What rights do these laws give? EMPLOYMENT
(cont.)

• Example
• George missed a lot of work because of his
  alcoholism, but did not use more sick days than
  he had accrued. He requested the reasonable
  accommodation of a leave of absence for
  inpatient treatment, but his employer fired him
  instead of granting the leave.
• Legal?

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer
• Depends.
• Legal to fire George if he did not/could not
  adequately perform his job, but
• illegal to fire him merely because of his
  alcoholism.
• If the employer granted leaves of absence for
  other medical conditions, it would be
  discriminatory not to grant one for Georges
  alcoholism treatment.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Example
• Angel is a stock trader. He is overheard
  talking about buying and using illegal drugs.
  When confronted by his employer, he admits he has
  a drug problem and asks for a leave of absence to
  go into treatment as a reasonable
  accommodation. Instead, the company fires him.
  Is this legal?

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer
• Yes. Angel does not have a disability because
  he is currently engaging in the illegal use of
  drugs. Hes not entitled to an accommodation.
• ? Sometimes company EAP programs will work with
  an employee to secure treatment and return to
  work if successful, but this is not required by
  law.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Remember . . .
• worker needs to be qualified, i.e. able to
  perform essential job duties, meet performance
  standards and comply with workplace rules.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Example
• Mike, who works as a parking lot attendant, is
  an alcoholic. He drinks on the job, and, while
  drunk, leaves his booth unattended. The booth is
  robbed. When this is discovered, he swears at
  his boss in front of a customer. Mike is fired.
  
• Illegal discrimination?

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer
• NO. While Mike can show that he is indeed
  disabled pursuant to the NYS HRL, employer is
  able to show from his actions that Mikes
  alcoholism prevents him from performing his job
  duties.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Example
• David is a fireman. Hes a recovering alcoholic
  but had a relapse and, while inebriated, called
  in a false alarm causing firefighters at his
  firehouse to respond, and while they were out he
  took 200 from a colleagues locker. Hes
  terminated by the Fire Department.
• Illegal discrimination?

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer
• NO.
• Even though Davids judgment was impaired by
  alcohol, his status as recovering alcoholic does
  not shield him from being penalized for
  misconduct he is unable to show he is fit to
  perform his job.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Example
• Ricardo, who is HIV, works as a comptroller for
  a nonprofit. He has not disclosed his status
  directly, but a coworker did help him submit
  claims for reimbursement for HIV-related tests.
  His job is very stressful and exacerbates mental
  and physical problems. He misses work without
  calling in, and is fired after several days.
• Legal?

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What rights do these laws give? EMPLOYMENT
(cont.)

• Yes.
• An employer is entitled to discharge an employee
  who fails to follow company rules and fails to
  appear for work without notification, even if the
  absences are attributable to a disability.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Example
• Jane is in a methadone maintenance program under
  a doctors care. She works as a nurses aide.
  Her employer randomly drug tests its employees,
  and Jane tests positive for methadone. She is
  fired because of the positive drug test.
• Illegal discrimination?

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer
• YES . . .
• if Jane notified tester or employer that she was
  in treatment and gave proof that she was taking
  methadone legally and was a patient in a program.

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What rights do these laws give? EMPLOYMENT
(cont.)

• Answer (cont)
• NO . . .
• if Jane was confronted, and she claimed she had
  no idea why she tested positive for methadone OR
  if she was taking methadone that was illegally
  obtained.
• It is not illegal to fire someone because of her
  illegal drug use.

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EMPLOYMENT Medical Questions/Exams Before Job
Offer

• In general . . .
• ?no questions about disability (current or
  past)?no requirement that applicant take HIV
  test
• ?no questions about alcohol or drug dependence
  or treatment (current or past)

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EMPLOYMENT Drug Tests

• May an employer give a drug test before
  employment?

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EMPLOYMENT Drug Tests (cont.)

• Answer
• Yes. Employer may conduct drug tests before
  hiring and may condition employment on a clean
  test (i.e., test revealing no illegal use of
  drugs).
• Drug tests are not considered to be a medical
  exam.

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EMPLOYMENT Drug Tests (cont.)

• Give lab letter from physician verifying
  prescription(s). Letter should attest to
  participation in methadone treatment if methadone
  is being taken to treat opiate dependence.
• Have tester document the medications prescribed.
• Lab may not disclose prescriptions to employer.

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EMPLOYMENT Medical Questions/Exams Before Job
Offer

• Examples of illegal questions before job offer
• Do you have HIV or AIDS?
• Have you ever had an alcohol problem?
• Have you ever been in alcohol or drug treatment?

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EMPLOYMENT Medical Questions/Exams

• Example
• Raul is applying to work as a medical assistant.
  The job application asks, Do you have HIV?
• Q1 Is this question legal?

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EMPLOYMENT Medical Questions/Exams (cont.)

• Answer
• A1. NO, because it is asking Raul if he has a
  disability before offering him the job.
• So . . . what to do?

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EMPLOYMENT Medical Questions/Exams (cont.)

• Raul
• Answer
• While lying is never a good idea employers can
  legally deny someone a job for falsifying an
  application its hard to know what to do when
  you encounter an illegal question. Raul could
  ask to take the application with him to fill out,
  and then seek legal counsel who may be able to
  intervene and advise the employer that the
  question is illegal.

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EMPLOYMENT Medical Questions/Exams (cont.)

• Answer (cont.)
• ? Or Raul could answer the question truthfully
  and explain that he is HIV, knowing that he is
  protected by the ADA and the New York State and
  City Human Rights Laws if the employer
  discriminates against him based on his answer to
  this question.

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EMPLOYMENT Medical Questions/Exams (cont.)

• Raul
• Q2. The application also asks, Do you currently
  use drugs or drink alcohol? Is this question
  legal? Does Raul have to answer this question?

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EMPLOYMENT Medical Questions/Exams (cont.)

• Answer
• Raul
• A2 YES. Employers may ask applicants if they
  currently use illegal drugs or drink alcohol
  because use does not mean addiction.
• BUT it is not okay to ask how much or how often
  one drinks alcohol because those questions can
  elicit information revealing that a person has a
  disability (i.e. alcohol dependence).

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EMPLOYMENT Medical Questions/Exams (cont.)

• Raul
• Q3 Raul is offered the job, but the company
  tells him he must pass a medical examination
  and a drug test before being able to start work.
  Is the company allowed to impose this
  requirement?

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EMPLOYMENT Medical Questions/Exams (cont.)

• Answer
• Raul
• A3 YES.
• Once an employer offers an applicant a job, the
  employer may require the applicant to pass a
  medical examination and/or a drug test as long
  as everyone offered the position is required to
  take and pass the same exam and/or test.

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EMPLOYMENT Medical Questions/Exams After Job
Offer Before Start

• What about AFTER the job offer?
• May the employer ask more questions then?

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EMPLOYMENT Medical Questions/Exams After Job
Offer Before Start (cont.)

• In general . . .
• ? employer may require exam/test if everyone
  offered that position must take same exam/test
• ? employer may condition hiring on satisfactory
  result
• Remember drug tests are not considered to be a
  medical exam. Employers may give them before
  or after a job offer.

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EMPLOYMENT Medical Questions/Exams After Job
Offer Before Start (cont.)

• Example
• Anton is offered a job as a a social worker but
  must pass a medical exam before he is hired.
• Illegal discrimination?

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EMPLOYMENT Medical Questions/Exams After Job
Offer Before Start (cont.)

• Answer
• NO, if the employer requires a medical exam of
  everyone starting work as a social worker.

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EMPLOYMENT Medical Questions/Exams (cont.)

• IMPORTANT
• Make sure you read medical questions carefully!

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EMPLOYMENT Medical Questions/Exams (cont.)

• Example
• Jeanne, who is HIV, has been offered a job as a
  day care assistant.
• Q1 Her employer asks her to have her doctor
  fill out forms, including one that asks whether
  she has any communicable diseases. How should
  the doctor answer?

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EMPLOYMENT Medical Questions/Exams (cont.)

• Answer
• Jeanne
• A1 The doctor can answer NO. HIV is not
  considered a communicable disease under
  New York State law.

100
EMPLOYMENT Medical Questions/Exams (cont.)

• Jeanne
• Q2 What if Jeannes employer asks her to have
  her doctor fill out a form with this question
  Please list all current diseases. What would
  be the best way to answer this question?

101
EMPLOYMENT Medical Questions/Exams (cont.)

• Jeanne
• Answer
• A2 Doctor may respond None that impair
  Jeannes ability to perform her job as day care
  assistant.

102
EMPLOYMENT Medical Questions/Exams (cont.)

• Jeanne
• Q3 What if Jeannes doctor cannot avoid
  disclosing Jeannes HIV status either because
  the form requires it or because the doctor
  believes its relevant for her job?

103
EMPLOYMENT Medical Questions/Exams (cont.)

• Jeanne
• Answer
• A3 Jeannes doctor may only disclose her HIV
  status if he has her written consent. The form
  must comply with NYs HIV confidentiality law
  HIPAA.

104
EMPLOYMENT Medical Questions/Exams of Current
Employees

• What about after someone starts working? What
  may employers find out about current employees
  disabilities?

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EMPLOYMENT Medical Questions/Exams of Current
Employees (cont.)

• Employers may require medical exams and ask
  current employees about disabilities only if the
  exam or question is job-related and consistent
  with business necessity.

106
EMPLOYMENT Medical Questions/Exams of Current
Employees (cont.)

• Example
• Employer has reasonable belief, based on
  objective evidence, that an employee has a health
  (including substance-use related) condition that
  impairs ability to perform the job or poses a
  direct threat to health and safety.

107
EMPLOYMENT Medical Questions/Exams of Current
Employees (cont.)

• When would an employer have such a reasonable
  belief?
• Employee passes out at her desk on more than one
  occasion
• Employee routinely nods off at work, raising
  questions about drug use
• Employee smells of alcohol after lunch every day

108
What rights do these laws give?

• HOUSING

109
What rights do these laws give?HOUSING (cont.)

• Federal law Fair Housing Amendments Act
• Prohibits disability-based discrimination in
  housing and real estate transactions
• ? applies to most public and private housing
  providers and other entities involved in sale or
  rental of housing (e.g. brokers, listing
  services)
• ? protects people with disabilities and persons
  or agencies associated with people with
  disabilities
• (e.g. housing organizations for PWAs,
  residential programs for people in recovery)

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What rights do these laws give?HOUSING (cont.)

• New York State Human Rights Law
• applies to most types of housing in New York
  State (e.g. apartments, houses, etc.)
• protects people with disabilities
• New York City Human Rights Law
• applies to almost every type of housing in NYC
  regardless of whether landlord is private or a
  government entity (e.g. apartments, single room
  occupancy rooms, coops, condominiums), as well as
  to banks, mortgage companies and other lenders.
• protects people with disabilities

111
What rights do these laws give?HOUSING (cont.)

• Example
• Yvonne and Robert were recently married and are
  looking for an apartment. Both are in recovery
  and attend weekly AA meetings at a local
  community college. They find an apartment that
  they love. They apply for the apartment and are
  told by the landlord that as long as their credit
  report checks out, the apartment is theirs. The
  next night, the landlord, sees them entering the
  AA meeting. Two days later, the landlord calls
  Robert and says he has rented the apartment to
  someone else.
• Q1 May the landlord deny Yvonne and Robert the
  apartment?

112
What rights do these laws give?HOUSING (cont.)

• ANSWER
• Yvonne and Robert
• A1. NO, if the landlord denied the apartment
  because he does not like alcoholics. The federal
  Fair Housing Act and the New York State and New
  York City Human Rights Laws prohibit most
  landlords from discriminating against prospective
  tenants on the basis of disability, including
  being in recovery from addiction.

113
What rights do these laws give?HOUSING (cont.)

• Yvonne and Robert
• Q2 But what else do we need to know?

114
What rights do these laws give?HOUSING (cont.)

• Yvonne and Robert
• ANSWER
• A2 We need to know why the landlord denied them
  the apartment. If it was because he saw them at
  AA, then it was illegal discrimination. But if
  it was because they had a bad reference from
  their last landlord, then it was not.

115
What rights do these laws give?HOUSING (cont.)

• Yvonne and Robert
• Q3 What if instead of seeing Yvonne and
  Robert at the AA meeting, the landlord ran a
  background check and discovered that Yvonne has
  a conviction for petit larceny. Would it be
  legal for him to deny the apartment on the basis
  of the conviction history?

116
What rights do these laws give?HOUSING (cont.)

• Yvonne and Robert
• Answer
• A3. Yes. Although the FHA prohibit landlords
  from discriminating against people because they
  are in recovery from alcoholism, it does not
  protect against discrimination based on criminal
  record status. This is true even where the
  conviction was long ago and has nothing to do
  with living in an apartment.
• Remember New Yorks protections for people
  with conviction histories apply to employment
  only.

117
What rights do these laws give?HOUSING (cont.)

• Example
• Dorothy wants to rent a mobile home. During the
  course of conversations with the mobile home park
  owner, she discloses that she is HIV. Soon
  thereafter, she is denied the rental.
• Illegal discrimination?

118
What rights do these laws give?HOUSING (cont.)

• Answer
• Yes
• -- if denial is based on HIV status
• No
• -- if denial is based on her unsuitability as a
  tenant, shown by past rental experience

119
What rights do these laws give?HOUSING (cont.)

• Example
• Elaine, who is HIV, lives in a rent-controlled
  apartment in New York City. She would like to
  spend time in Florida during the winter because
  it will help her feel better, and wants to keep a
  roommate in her apartment while she is gone, as a
  reasonable accommodation. Landlord refuses to
  grant her the right to have a roommate.
• Illegal discrimination?

120
What rights do these laws give?HOUSING (cont.)

• Answer
• NO. This is a merely economic accommodation,
  which is not recognized by the FHAA. This is
  true even though the landlords refusal to grant
  the roommate request violated rent control laws
  and was clear retaliation (so Elaine may have
  other legal claims).

121
What rights do these laws give?HOUSING (cont.)

• Example
• Elias has been in methadone maintenance
  treatment for more than a year, and is stable on
  his medication. He lives in a shelter now, but
  wants to enter a halfway house. The halfway
  house is drug free, and they say Elias will
  have to abstain from methadone in order to live
  there. Is this legal?

122
What rights do these laws give?HOUSING (cont.)

• Answer
• No. Singling out people in methadone maintenance
  from other people in recovery and denying them
  services for this reason is disability-based
  discrimination.

123
What rights do these laws give?HOUSING (cont.)

• What about public housing?

124
What rights do these laws give?HOUSING (cont.)

• Public housing Federal law prohibits housing
  authorities from leasing to persons if any
  members of their households
• Currently USE DRUGS ILLEGALLY or
• Abuse ALCOHOL or have a pattern of abuse that
  may threaten health and/or safety of residents.

125
What rights do these laws give?HOUSING (cont.)

• Public housing (cont.)
• People may live in public housing if
• they are not using drugs illegally OR
• their alcohol abuse/pattern of abuse does
  not pose a threat to the health and/or safety of
  residents.

126
What rights do these laws give?HOUSING (cont.)

• The New York City Housing Authority disqualifies
  from admission people who NYCHA believes threaten
  the health safety of NYCHA residents
  property.
• NYCHA also disqualifies people based on their
  criminal conviction histories this will be
  discussed later in the presentation.

127
What rights do these laws give?

• GOVERNMENT SERVICES PROGRAMS

128
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS

• Government agencies (federal, state and local)
  may not discriminate against persons with
  disabilities.
• This anti-discrimination rule applies to all
  government programs, services and activities.

129
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Examples of government programs services that
  may not discriminate
• Public assistance, Medicaid other government
  benefits
• Occupational licensing
• Zoning
• Job training
• Government health programs

130
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Example
• Drug and alcohol rehabilitation program wants to
  relocate downtown, and applies to zoning board
  for a permit to adapt a storefront into a
  treatment center. Permit is granted but area
  store owners appeal, claiming the program will
  decrease property values and physical appearance
  of programs clients will scare away customers.
  Permit is revoked. Does the rehab program have
  standing to sue under the ADA and Rehab Act?

131
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Answer
• YES. Title II of the ADA and the Rehab Act
  extend relief to any person alleging
  discrimination on the basis of disability.
• 42 U.S.C. 12133.
• Innovative Health Systems, Inc. v. City of White
  Plains, 117 F.3d 37, 47 (2d Cir. 1997)

132
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Example
• City program set up as a reasonable
  accommodation to help make public assistance
  programs available to people with HIV/AIDS breaks
  down, so that applicants are improperly denied
  and recipients terminated without notice.
• Illegal discrimination?

133
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Answer
• Yes.
• Even though no showing that City intended to
  treat people with HIV/AIDS less favorably than
  others, it had this effect. There was
  discriminatory impact in violation of Title II of
  the ADA and the Rehabilitation Act. No need to
  show intent to discriminate.

134
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Example
• Rachel has been in methadone maintenance
  treatment for six years. She recently applied
  for public assistance. During the application
  process, the worker asks her if she has a drug or
  alcohol problem. Rachel explains that she used
  to, but now shes in methadone treatment.
• Q May the public assistance office deny
  Rachels application because of her past drug
  problem or her current status as methadone
  maintenance patient?

135
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Answer
• NO.
• The ADA and the Rehabilitation Act prohibit
  Federal, state and local government programs from
  discriminating on the basis of disability.
  Therefore, the public assistance office, which is
  part of a state agency, may not deny Rachel
  benefits because of her past drug problem or
  current status as methadone maintenance patient.

136
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• HOWEVER . . . some federal laws limit the rights
  of people with drug related criminal convictions
• ?Public assistance food stamps
• ?Student loan ban

137
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Public assistance food stamps
• 1996 welfare reform law imposed a lifetime ban
  on federal cash assistance food stamps for
  anyone convicted of a drug-related felony after
  8/22/96.
• ? States may opt out. New York State
  has opted out of this lifetime ban.

138
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Student loan suspension People convicted of
  drug sale possession offenses while enrolled in
  school while receiving federal financial
  assistance become ineligible for federal student
  loans, grants and work assistance unless they
  complete a treatment program.
• Before 7/1/06, suspension applied regardless of
  when the conviction occurred even if it was
  years before the student received federal
  financial assistance. But that changed.

139
What rights do these laws give?GOVERNMENT
SERVICES PROGRAMS (cont.)

• Student loan suspension (cont.)
• Applies to convictions for drug sale possession
  offenses only not arrests.
• Length of suspension depends on the conviction
  and evidence of rehabilitation. Can be overcome
  upon completion of treatment.
• State-funded programs may have different rules

140
Criminal Records

• EMPLOYMENT
• and
• HOUSING ISSUES

141
Criminal Records Employment

• Are there any laws that help protect job
  applicants who have criminal records?
• YES.
• laws that cover contents and use of background
  checks (fair credit reporting acts)
• laws that protect job seekers from discrimination
  (corrections and human rights laws).

142
Criminal Records and Employment Fair Credit
Reporting Acts

• The NY and federal Fair Credit Reporting Acts
  (FCRA), N.Y. G.B.L. 380-a et seq. and 15
  U.S.C. 1681-1681(u), respectively, set forth
  rights and obligations of consumer reporting
  agencies (CRAs) and employers when using a
  background check as a screening tool.

143
Criminal Records and Employment Fair Credit
Reporting Acts (cont.)

• Fair Credit Reporting Acts
• What criminal record information can be included
  in a background report?
• Criminal convictions no matter how old.
• (NYS If position will pay less than 25K,
  can only go back 7 yrs from conviction, release
  from prison/jail or end of probation/parole)

144
Criminal Records and Employment Fair Credit
Reporting Acts (cont.)

• Under NYS FCRA, background report may NOT
  include
• Information about arrests that did not lead to a
  criminal conviction.
• So . . . no information about arrests where case
  was dismissed or never prosecuted, or . . .

145
Criminal Records and Employment Fair Credit
Reporting Acts (cont.)

• . . . information about arrests that led to a
  non-criminal, violation-level conviction. Since a
  violation is not a crime, it is illegal under
  NYS FCRA to include this information in a
  criminal background report.

146
Criminal Records and Employment Fair Credit
Reporting Acts (cont.)

• As of August, 2007, the NYS Office of Court
  Administration (OCA) no longer includes
  information about sealed violations in the
  records that it sells to the public (including to
  CRAs).
• This change has helped ensure that background
  checks do not include information about
  violations.

147
Criminal Records and Employment Fair Credit
Reporting Acts (cont.)

• Federal Fair Credit Reporting Act
• If information in report is inaccurate, the
  applicant has the right to insist that the credit
  reporting agency
• correct the report and
• send the employer the corrected information.

148
Criminal Records and Employment Fair Credit
Reporting Acts (cont.)

• EMPLOYERS Responsibilities
• must get applicants permission in writing before
  ordering a background check
• Federal FCRA employer must give applicant a copy
  of the background check, if it contains any
  negative information, before denying job.
• employers frequently fail to follow this law, and
  deny jobs without providing the negative report
  first.

149
Criminal Records-Based Employment Discrimination
Legal Protections

• What are the laws that prohibit employment
  discrimination based on criminal records?

150
Criminal Records Employment Protections under
Federal Law

• Federal anti-discrimination law
• No federal law directly prohibits employment
  discrimination based on a criminal record, BUT

151
Criminal Records Employment Protections under
Federal Law (cont.)

• Federal anti-discrimination law (cont.)
• Discrimination based on a criminal record can
  be race discrimination in violation of Title VII
  of the Civil Rights Act of 1964.
• The federal Equal Employment Opportunity
  Commission (EEOC) courts have issued opinions
  that this type of discrimination can be illegal
  race discrimination.

152
Criminal Records Employment Protections under
Federal Law (cont.)

• Federal anti-discrimination law (cont.)
• Example
• Employer has policy we dont hire people with
  criminal records. This policy might have a
  racial impact, based on statistics about arrests
  and convictions in the United States.

153
Criminal Records Employment Protections in New
York State

• Is discrimination because of a criminal record
  prohibited by New York State laws?
• YES
• Article 23-A of the Correction Law
• (Correction Law 750-755)
• A violation of Art. 23-A is a violation of the
  New York State Human Rights Law.

154
Criminal Records Employment Protections in New
York State (cont.)

• Art. 23-A
• Applicant (or current employee) may not be
  denied job or occupational license because of
  conviction record unless
• 1. direct relationship between
  conviction and job or license sought, or
• 2. hiring or licensure would create an
  unreasonable risk to property or public
  or individual safety.

155
Criminal Records Employment Protections in New
York State (cont.)

• Art. 23-A
• Employer must consider eight factors, including
• Age at time of conviction time elapsed since
  conviction
• Rehabilitation, including
• certificate of relief from disabilities or
• certificate of good conduct
• Seriousness of offense
• Relationship to job duties
• Public policy encouraging hiring of people with
  criminal records

156
Criminal Records Employment Protections in New
York State (cont.)

• How do these Laws Work in Practice?
• Employer may not have flat policy we dont hire
  people with criminal records.
• Employer may not have flat policy we fire
  anyone who has a criminal record, even if we
  never asked about it before.
• Employer must evaluate each job applicant
  individually.

157
Real-Life Example An Online Job Application

• Please take a moment to answer these brief
  questions and then proceed to the application by
  clicking on the continue button below
• O Are you at least 20 years of age? Yes/ No
• O Do you have at minimum a high school diploma
  or equivalent?
• Yes/ No
• O Are you legally authorized to work in this
  country? Yes/ No
• O Do you have a valid driver's license? Yes/ No
• O Can you work full-time and Saturdays? Yes/ No
• O Are you willing to consent to a criminal
  background, motor vehicle record and drug screen?
  Yes/ No
• O Have you had any felony convictions within the
  last 7 years or any other convictions involving
  violence, threat of violence, sexual misconduct
  or theft? Yes/ No 

158
Real-Life Example An Online Job Application

• What happens when you answer yes to the last
  question?

159
Criminal Records Employment Protections in New
York State (cont.)

• Example
• Mike has a 1985 felony conviction for carrying a
  gun on the subway. Mike received probation for
  this conviction, and has had no trouble with the
  law since that time. He has worked with disabled
  adults and children since 1985, and currently
  works as a school aide for the NYC Dept of Ed.
  Looking to get a less stressful job, Mike
  applies for a position as a direct care worker at
  a program for disabled children. The state
  agency licensing the program fingerprints Mike
  and denies him the job based on his 1985
  conviction. Discrimination?

160
Criminal Records Employment Protections in New
York State (cont.)

• Answer
• Yes.
• Licensing agency clearly did not analyze the Art.
  23-A factors or look at Mikes bountiful evidence
  of rehabilitation.
• . . . one is forced to ponder how the agency
  could have arrived at its determination which is
  surely arbitrary, since no analysis of the
  factors was done."
• Boatwright v. OMRDD, 2007 WL 2176241

161
Criminal Records Employment Protections in New
York City

• A violation of Art. 23-A of the Correction Law
  is also a violation of the New York City Human
  Rights Law.

162
Criminal Records Employment Protections in NYC
NYC

• NYS NYC Human Rights Laws
• Employers . . .
• ? may not ask about arrests that did not lead
  to conviction
• ? may not ask about youthful offender
  adjudications
• ? may not ask about sealed violation convictions
• ? . . . except for law enforcement positions.

163
Criminal Records Employment Protections in NYC
NYC (cont.)

• NYS NYC Human Rights Laws (cont.)
• Employers may not adversely act upon arrests
  that did not lead to conviction
• . . . except for law enforcement positions.

164
CRIMINAL RECORDS AND PUBLIC HOUSING NYCHA

• See How to Get Section 8 or Public Housing,
  Even With A Criminal Record, available free at
  www.lac.org.

165
CRIMINAL RECORDS AND PUBLIC HOUSING NYCHA

• Federal law gives local housing authorities the
  discretion to exclude people whose history of
  criminal activity
• would adversely affect the health, safety, or
  welfare of other tenants.
• As permitted by federal law, New York City
  Housing Authoritys own policies disqualify
  people who NYCHA believes threaten the health
  safety of NYCHA residents property.

166
CRIMINAL RECORDS AND PUBLIC HOUSING NYCHA
(cont.)

• Whose Criminal Record Affects Eligibility for
  Public Housing?
• Every proposed household member aged 16 or over

167
CRIMINAL RECORDS AND PUBLIC HOUSING NYCHA
(cont.)

• Which Convictions Can Disqualify People From
  Public Housing?
• NYCHA overlooks some minor convictions.
• Most convictions disqualify households for a
  certain number of years AFTER completion of
  sentence.
• Start counting after the end of parole or
  probation.

168
Which Convictions Can Disqualify People From
Public Housing (cont.)

• Felonies
• Class A, B, or C 6 years
• Class D or E 5 years
• . . . and no further convictions or pending
  charges

169
Which Convictions Can Disqualify People From
Public Housing (cont.)

• Misdemeanors
• Class A
• 4 years if 1 or 2 within last 10 years
• 5 years if 3 or more within last 10 years
• Class B or unclassified
• 3 years if 1 or 2 within last 10 years
• 4 years if 3 or more within last 10years

170
Which Convictions Can Disqualify People From
Public Housing (cont.)

• Violations or DWI Infractions
• 2 years if 1 or 2 convictions
• 3 years if 3 or more of any type of conviction
  within last 10 years

171
Convictions Are NOT An Absolute Bar to Public
Housing

• Even if a household member has a conviction that
  falls within the bar . . .
• Can qualify if show rehabilitation and other
  evidence why person is not a threat to
  health/safety of residents.

172
NYCHA How To Lift The Conviction Bar

• NYCHA must consider these 6 factors
• 1. Seriousness of the offense
• 2. Frequency of the offense
• 3. When the offense occurred
• 4. Conduct underlying the offense
• 5. Rehabilitation since the offense
• 6. Participation in counseling or social
  service programs designed to correct the
  offending behavior.

173
Criminal Records Employment and Public Housing
Proving Rehabilitation

• How do you prove rehabilitation?
• Through supporting documents, show
• person with the conviction record has made
  positive changes in his/her life since the time
  of the conviction(s)
• quantity of proof, as well as quality, counts

174
Criminal Records Employment and Public Housing
Proving Rehabilitation (cont.)

• Applicants should collect the best evidence of
  rehabilitation that they can, and be able to
• accurately describe their convictions
  underlying circumstances
• be willing to own up to the convictions, though
  this may be uncomfortable
• explain how they have been rehabilitated
• See todays handout, How to Gather Evidence of
  Rehabilitation

175
HAVE QUESTIONS?

• Call the Legal Action Center
• 212-243-1313