Caught in the crosshairs of a legislative amendment

Did you know that it's illegal in New York to deny someone a job because of his criminal record? It's been the law since 1976. The law said precisely that. It is unlawful to reject an application or license for employment because of a criminal record (with some exceptions). In 2007, the state legislature amended the law to also say that it's unlawful to fire someone because of his criminal record. This amendment created a dilemma for a plaintiff who was fired prior to the amendment in 2007.

The case is Noble v. Career Education Corp., a summary order decided on April 29. I briefed and argued the appeal, so I'll try to be objective here. Noble's case raised an interesting issue of statutory construction. The plain terms of the 1976 law did not protect him because he was fired prior to the 2007 amendment which would have protected him. But two of the four appellate divisions in New York seemed to hold that the pre-2007 law also covered post-hiring decisions and therefore outlawed terminations because of a criminal record. The First Department in Manhattan came right out and said it: "The same public policy that prohibits discrimination in hiring on the basis of a criminal record prohibits discrimination in terminating employment on the basis of a criminal record."

On the other hand, if the state legislature in 2007 amended the law to protect people from conviction-related terminations, doesn't that mean that the 1976 law was never supposed to reach that far and the appellate rulings over the years that broadly interpreted the law had overreached? Then again, maybe the 2007 amendment simply codified the existing case law that had already prohibited wrongful discharge. The New York Court of Appeals never got around to that issue, so the Second Circuit took up that issue on its own.

The Court of Appeals (Raggi and Hall) rules for the employer, strictly construing the 1976 law to prohibit only failure to hire. As for the state appellate rulings that went the other way, the Court of Appeals finds that the cases are not that clear, and that the Fourth Department seems to have gone both ways on the issue. The Third Department, on the other hand, did interpret the 1976 law to only prohibit failure to hire. The Second Circuit also interprets the 2007 amendment (and the sponsor's memorandum accompanying the amendment) to mean that the law was never supposed to protect plaintiffs like Noble, until now. For Noble, it's too late. The law is not retroactive, and the case is dismissed.