Thursday, June 11, 2015

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination



Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination
Costco Wholesale Corp. v New York State Div. of Human Rights, 2015 NY Slip Op 04587, Appellate Division, First Department

The New York State Division of Human Rights [Division], after a hearing, found that Costco Wholesale Corporation [Costco] had violated the State Human Rights Law (Executive Law §296) when it included certain questions on its electronic application form for employment and ordered Costco to pay $40,000 in civil fines and penalties.

Costco appealed and the Appellate Division unanimously annulled the Division’s determination and the fine and penalties that it had imposed on Costco.

The Appellate Division said that the Division’s determination that Costco had violated Executive Law §296(15) and Article 23-A of the Corrections Law is not supported by substantial evidence as the evidence in the record did not show that Costco’s online employment application system automatically disqualified applicants with a prior criminal conviction.

The court said that the evidence showed that questions that could lead to an applicant’s “automatic” disqualification concerned the applicant’s “legal documentation to work in the United States,” his or her willingness to undergo a criminal background check and employment reference check, his or her willingness to submit to a drug test, whether the applicant states the he or she is able to perform the essential functions of the job, and whether the applicant is 18 years of age or older.

As to an applicant’s response to a question concerning his or her “prior conviction,” the Appellate Division commented that the question was specifically “not an automatic bar to employment, as stated in the application itself.“ The Appellate Division said that the fact that the complainant's application was designated as "pre-screened" indicating that it had passed through the online portion of the hiring process and “was not marked ineligible.”

Nor, said the court, was there any evidence that Costco’s grading criteria for applicants with convictions was used in connection with the online application. Instead, noted the Appellate Division, the evidence showed that this non-mandatory guideline was used only when an applicant had reached the background check stage of the hiring process.

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