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

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


1
  • Anti-Discrimination Laws Protecting Individuals
    with HIV/AIDS, Alcohol/Drug Problems, and
    Criminal Records

2
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.

3
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.

4
Part One
  • What Is Discrimination?

5
DISCRIMINATION IS . . .
  • treating a person less favorably/differently
    because of his/her STATUS
  • . . . when the law does not permit it.

6
DISCRIMINATION IS . . .
  • Examples of status protected by law
  • Race
  • Age
  • Disability
  • Gender
  • Criminal Record History
  • New York State and City laws only

7
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

8
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).

9
DISCRIMINATION IS NOT . . .
  • . . . treating a person less favorably/different
    ly because of his/her
  • CONDUCT

10
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.

11
Todays Presentation/Discussion
  • Focuses on discrimination due to
  • Disability
  • Criminal Record

12
Part Two
  • Which Laws Prohibit Discrimination Against People
    with HIV/AIDS or Alcohol/Drug Histories?

13
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)

14
THE LAWS DISABILITY DISCRIMINATION
  • FEDERAL LAWS (cont.)
  • Fair Housing Amendments Act of 1988
  • (42 U.S.C. 3601 et seq.)

15
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

16
FEDERAL LAWS
  • WHO IS PROTECTED BY THESE LAWS?

17
FEDERAL LAWS WHO 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

18
Who is Protected?
  • Proving disability under anti-discrimination
    laws is NOT same as proving disability for
    government benefit programs, like SSI.

18
19
FEDERAL LAWS WHO 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

20
FEDERAL LAWS WHO 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.

21
FEDERAL LAWS WHO IS PROTECTED? (cont.)
  • Is HIV status or AIDS a disability?
  • generally, YES
  • case-by-case decision

22
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.

22
23
FEDERAL LAWS WHO 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.

24
FEDERAL LAWS WHO 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.

25
FEDERAL LAWS WHO 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

26
FEDERAL LAWS WHO 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.

27
FEDERAL LAWS WHO 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

28
FEDERAL LAWS WHO 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?

29
FEDERAL LAWS WHO 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.

30
FEDERAL LAWS WHO IS PROTECTED? (cont.)
  • What about people in methadone maintenance
    treatment or other medication assisted
    treatment (MAT)? Are they protected by
    federal laws?

31
FEDERAL LAWS WHO 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)

32
FEDERAL LAWS WHO 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?

33
FEDERAL LAWS WHO 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 . . .

34
FEDERAL LAWS WHO 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.

35
FEDERAL LAWS WHO 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?

36
FEDERAL LAWS WHO 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.

37
FEDERAL LAWS WHO 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?

38
FEDERAL LAWS WHO 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.

39
FEDERAL LAWS (cont.)
  • WHO MUST FOLLOW THESE LAWS?

40
FEDERAL LAWS WHO MUST FOLLOW THESE LAWS? (cont.)
  • Who must follow the Rehab Act?
  • Federal government
  • Groups/agencies/programs that receive federal
    funding, either directly or indirectly

41
FEDERAL LAWS WHO 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.

42
FEDERAL LAWS WHO 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)

43
NEW YORK STATE AND CITY LAWS
44
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.

45
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)

46
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.

47
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?

48
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)

49
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.

50
New York City Human Rights Law
  • WHO IS PROTECTED?
  • a person with a disability
  • in New York City

51
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.

52
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.

53
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.

54
Part Three
  • What RIGHTS Do These Laws Give People With
    HIV/AIDS, or Past or Current Alcohol/Drug
    Problems?

55
What rights do these laws give?
  • EMPLOYMENT

56
What rights do these laws give? EMPLOYMENT
  • No employer shall discriminate against a
    qualified individual with a disability.

57
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

58
What rights do these laws give? EMPLOYMENT
(cont.)
  • What is a reasonable accommodation?

59
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

60
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.

61
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

62
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.

63
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.

64
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

65
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

66
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?

67
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.

68
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?

69
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.

70
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.

71
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?

72
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.

73
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?

74
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.

75
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?

76
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.

77
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?

78
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.

79
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.

80
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)

81
EMPLOYMENT Drug Tests
  • May an employer give a drug test before
    employment?

82
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.

83
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.

84
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?

85
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?

86
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?

87
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.

88
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.

89
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?

90
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).

91
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?

92
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.

93
EMPLOYMENT Medical Questions/Exams After Job
Offer Before Start
  • What about AFTER the job offer?
  • May the employer ask more questions then?

94
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.

95
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?

96
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.

97
EMPLOYMENT Medical Questions/Exams (cont.)
  • IMPORTANT
  • Make sure you read medical questions carefully!

98
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?

99
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?

105
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)

110
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
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