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Monday, February 01, 2010

Rejection of an applicant for employment or license because of his or her conviction of a crime

Rejection of an applicant for employment or license because of his or her conviction of a crime
Matter of Acosta v New York City Dept. of Educ., 62 AD3d 455

The Acosta decision explains that where a prospective employer rejects an applicant for employment because of that individual’s conviction of a crime, the employer must show that such conviction is relevant to the duties of the position or poses an unreasonable danger to clients, co-workers or the public.

In 1993 Madeline Acosta, then a 17-year-old high school senior, was convicted of four counts of robbery in the first degree.

Thirteen years later, the Department of Education rejected Costa’s application for the employment barring her continuing to work for the Cooke Center for Learning and Development, a nonprofit organization under contract with the Department of Education to provide special education services to disabled preschoolers.

The Department of Education’s rationale for its denial: approving Acosta’s application "will pose an unreasonable risk to the safety and welfare of the school community" in view of her 1993 conviction for robbery.

In the appeal that followed, the Appellate Division, in a three to two holding, agreed with Supreme Court that the Department’s determination should be annulled.*

The Appellate Division referred to the “overwhelming evidence” of Acosta’s rehabilitation** and the undisputed evidence that Acosta’s duties at Cooke Center did not involve or require any contact with young children.

Citing Correction Law §§752 and 753, the court indicated that a prospective employer, in deciding to reject an applicant because of the individual’s “having been previously convicted of one or more criminal offenses,” must consider, among other factors, "[t]he specific duties and responsibilities necessarily related to the license or employment sought."***

In this instance, said the court, the Department of Education merely alleged that Acosta's position with the Cooke Center "would bring her into contact with young children" and give her "access to sensitive student information.”

The Appellate Division ruled that there was no showing that the nature of the serious crimes for which she was convicted was relevant in any respect to her present duties or posed an unreasonable danger to those involved in the preschool program.

Accordingly, said the court, “the Department of Education's determination that [Acosta’s] conviction for armed robberies committed when she was a 17-year-old high school student more than 13 years earlier would ‘pose an unreasonable risk to the safety and welfare of the school community,’ without more, was arbitrary and capricious, i.e., ‘without sound basis in reason’ and ‘without regard to the facts.’”

* With respect to Acosta’s claim seeking reinstatement and back pay, the Appellate Division found that Acosta "was not directly employed by the Department of Education but by an independent agency under contract to the Department,” and remanded the matter to Supreme Court “for further proceedings to fashion an appropriate remedy in accord with [its] decision.”

** The decision notes that following her parole in 1996, Acosta “earned a Bachelor of Science degree in legal assistant studies … [married and started] a family … worked as a paralegal/administrative assistant at two environmental law firms before leaving to take a part-time position as an administrative assistant coordinating schedules for teachers and students at the Cooke Center….”

*** §752 of the Correction Law bars "unfair discrimination against persons previously convicted of one or more criminal offenses" while §753 sets out the factors to be considered concerning a previous criminal conviction. §754 requires that the individual convicted of one or more criminal offenses who has been denied a license or employment be given a written statement setting forth the reasons for such denial upon his or her request.

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