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For purposes of this chapter,
Adverse employment action. "Adverse employment action" refers to any action that negatively affects the terms and conditions of employment.
Applicant. "Applicant" refers to persons seeking initial employment, and current employees who are seeking or being considered for promotions or transfers.
Article 23-A analysis. "Article 23-A analysis" refers to the process required under subdivisions 9, 10, 11, and 11-a of § 8-107 of the Administrative Code to comply with Article 23-A of the New York Correction Law.
Article 23-A factors. "Article 23-A factors" refers to the factors that employers must consider concerning applicants' and employees' conviction histories under Section 753 of Article 23-A of the New York Correction Law.
Business day. "Business day" means any day except for Saturdays, Sundays, and all legal holidays of the City of New York.
Childbirth. “Childbirth” refers to labor or childbirth, whether or not it results in a live birth.
Cisgender. “Cisgender” is a term used to describe a person whose gender identity conforms with their sex assigned at birth.
Commission. "Commission" means the New York City Commission on Human Rights.
Conditional offer of employment. "Conditional offer of employment," as used in § 8-107(11-a) of the Administrative Code and 47 RCNY § 2-04 for purposes of establishing when an applicant's criminal history can be considered by an employer, refers to an offer of employment, promotion or transfer. A conditional offer of employment can only be revoked based on one of the following:
1. The results of a criminal background check, and only after the "Fair Chance Process," as defined in this section, has been followed.
2. The results of a medical exam as permitted by the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et seq.
3. Other information the employer could not have reasonably known before making the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material.
For temporary help firms, a conditional offer is the offer to place an applicant in the firm's labor pool, which is the group of individuals from which the firm selects candidates to send for job opportunities.
Consumer credit history. “Consumer credit history” is an individual’s credit worthiness, credit standing, credit capacity, or payment history, as indicated by (i) a consumer credit report, which shall include any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history; (ii) a consumer’s credit score; or (iii) information an employer obtains directly from the individual regarding (a) details about credit accounts, including the individual’s number of credit accounts, late or missed payments, charged-off debts, debt collection lawsuits, nonpayment lawsuits, items in collections, credit limit, prior credit report inquiries, or (b) bankruptcies, judgments, or liens.
Consumer reporting agency. “Consumer reporting agency” is a person or entity that provides reports containing information about an individual’s credit worthiness, credit standing, credit capacity, or payment history. A consumer reporting agency includes any person or entity that, for monetary fees, dues, or on a cooperative nonprofit basis, engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information about consumers for the purpose of furnishing consumer reports or investigative consumer reports to third parties. A person or entity need not regularly engage in assembling and evaluating consumer credit history to be considered a consumer reporting agency.
Conviction history. "Conviction history" refers to records of an individual's conviction of a felony, misdemeanor, or unsealed violation as defined by New York law or federal law, or the law of the state in which the individual was convicted.
Cooperative dialogue. “Cooperative dialogue” refers to the process by which a covered entity and a person entitled to an accommodation, or who may be entitled to an accommodation under the law, engage in good faith in a written or oral dialogue concerning the person’s accommodation needs; potential accommodations that may address the person’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.
Criminal background check. "Criminal background check" refers to when an employer, employment agency or agent thereof orally or in writing:
1. Asks a person whether or not they have a criminal record; or
2. Searches for publicly available records, including through a third party, such as a consumer reporting agency, the Internet, or private databases, for a person's criminal history.
Criminal history. "Criminal history" refers to records of an individual's convictions, unsealed violations, non-convictions, and/or currently pending criminal case(s).
Direct relationship. "Direct relationship" refers to a finding that the nature of the criminal conduct underlying a conviction has a direct bearing on the fitness or ability of an applicant or employee to perform one or more of the duties or responsibilities necessarily related to the license, registration, permit, employment opportunity, or terms and conditions of employment in question.
Domestic partners. "Domestic partners" means persons who have a registered domestic partnership, which shall include any partnership registered pursuant to Chapter 2 of Title 3 of the Administrative Code, any partnership registered in accordance with executive order number 123, dated August 7, 1989, and any partnership registered in accordance with executive order number 48, dated January 7, 1993, and persons who are members of a marriage that is not recognized by the state of New York, a domestic partnership, or a civil union, lawfully entered into in another jurisdiction.
Employer. "Employer" refers to an employer as defined by § 8-102(5) of the Administrative Code.
Fair Chance Process. "Fair Chance Process" refers to the postconditional offer process mandated by § 8-107(11-a) of the Administrative Code when employers elect to withdraw a conditional offer of employment or deny a promotion or transfer based on an applicant's conviction history.
Gender. “Gender” includes actual or perceived sex, gender identity, and gender expression including a person’s actual or perceived genderrelated self-image, appearance, behavior, expression, or other genderrelated characteristic, regardless of the sex assigned to that person at birth.
Gender expression. “Gender expression” is the representation of gender as expressed through one’s name, pronouns, clothing, hairstyle, behavior, voice, or similar characteristics. Gender expression may or may not conform to gender stereotypes, norms, and expectations in a given culture or historical period. Terms associated with gender expression include, but are not limited to, androgynous, butch, female/woman/feminine, femme, gender non-conforming, male/man/masculine, or non-binary.
Gender identity. “Gender identity” is the internal deeply-held sense of one’s gender which may be the same as or different from one’s sex assigned at birth. A person’s gender identity may be male, female, neither or both, i.e., non-binary. Terms associated with gender identity include, but are not limited to, agender, bigender, female/woman/womxn/feminine, female to male (FTM), gender diverse, gender fluid, gender queer, male/man/masculine, male to female (MTF), man of trans experience, pangender, or woman of trans experience.
Gender non-conforming. “Gender non-conforming” is a term used to describe a person whose gender expression differs from gender stereotypes, norms, and expectations in a given culture and historical period. Terms associated with gender non-conforming include, but are not limited to, androgynous, gender expansive, gender variant, or gender diverse.
High degree of public trust. “High degree of public trust” as used in 47 RCNY § 2-05 refers only to the following City agency positions: (i) agency heads and directors; (ii) Commissioner titles, including Assistant, Associate, and Deputy Commissioners; (iii) Counsel titles, including General Counsel, Special Counsel, Deputy General Counsel, and Assistant General Counsel, that involve high-level decision-making authority; (iv) Chief Information Officer and Chief Technology Officer titles; and (v) any position reporting directly to the head of an agency.
Human Rights Law. "Human Rights Law" refers to Title 8 of the Administrative Code.
Intelligence information. “Intelligence information” means records and data compiled for the purpose of criminal investigation or counterterrorism, including records and data relating to the order or security of a correctional facility, reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual, or investigation or analysis of potential terrorist threats.
Inquiry. "Inquiry," when used in connection with criminal history, refers to any oral or written question asked for the purpose of obtaining a person's criminal history, including without limitation, questions in a job interview about an applicant's criminal history, and any search for a person's criminal history, including through the services of a third party, such as a consumer reporting agency.
Intersex. “Intersex” is a term used to refer to a person whose sex characteristics (chromosomes, hormones, gonads, genitalia, etc.) do not conform with a binary construction of sex as either male or female.
Lactation room. “Lactation room” refers to a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion and that includes at minimum an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water.
Licensing agency. "Licensing agency" refers to any agency or employee thereof that is authorized to issue any certificate, license, registration, permit or grant of permission required by the law of this state, its political subdivisions or instrumentalities as a condition for the lawful practice of any occupation, employment, trade, vocation, business or profession.
Members. "Members" means individuals belonging to any class of membership offered by the institution, club, or place of accommodation including, but not limited to, full membership, resident membership, nonresident membership, temporary membership, family membership, honorary membership, associate membership, membership limited to use of dining or athletic facilities, and membership of members' minor children or spouses or domestic partners.
National security information. “National security information” means any knowledge relating to the national defense or foreign relations of the United States, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States government and is defined as such by the United States government and its agencies and departments.
Non-binary. “Non-binary” is a term used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male nor female.
Non-conviction. "Non-conviction" means any arrest or criminal accusation, not currently pending, that was concluded in one of the following ways:
1. Termination in favor of the individual, as defined by New York Criminal Procedure Law ("CPL") Section 160.50, even if not sealed;
2. Adjudication as a youthful offender, as defined by CPL Section 720.35, even if not sealed;
3. Conviction of a non-criminal offense that has been sealed under CPL Section 160.55; or
4. Convictions that have been sealed under CPL Section 160.58.
"Non-conviction" includes a disposition of a criminal matter under federal law or the law of another state that results in a status comparable to a "non-conviction" under New York law as defined in this section.
Payment directly from a nonmember. "Payment directly from a nonmember" means payment made to an institution, club or place of accommodation by a nonmember for expenses incurred by a member or nonmember for dues, fees, use of space, facilities, services, meals or beverages.
Payment for the furtherance of trade or business. "Payment for the furtherance of trade or business" means payment made by or on behalf of a trade or business organization, payment made by an individual from an account which the individual uses primarily for trade or business purposes, payment made by an individual who is reimbursed for the payment by the individual's employer or by a trade or business organization, or other payment made in connection with an individual's trade or business, including entertaining clients or business associates, holding meetings or other business-related events.
Payment indirectly from a nonmember. "Payment indirectly from a nonmember" means payment made to a member or nonmember by another nonmember as reimbursement for payment made to an institution, club or place of accommodation for expenses incurred for dues, fees, use of space, facilities, meals or beverages.
Payment on behalf of a nonmember. "Payment on behalf of a nonmember" means payment by a member or nonmember for expenses incurred for dues, fees, use of space, facilities, services, meals or beverages by or for a nonmember.
Per se violation. “Per se violation” refers to an action or inaction that, standing alone, without reference to additional facts, constitutes a violation of Title 8 of the Administrative Code, regardless of whether any adverse employment action was taken or any actual injury was incurred.
Pregnancy. “Pregnancy” refers to being pregnant, and symptoms of pregnancy, including, without limitation, nausea, morning sickness, dehydration, increased appetite, swelling of extremities, and increased body temperature.
Regular meal service. "Regular meal service" means the provision, either directly or under a contract with another person, of breakfast, lunch, or dinner on three or more days per week during two or more weeks per month during six or more months per year.
Regularly receives payment. An institution, club or place of accommodation "regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business" if it receives as many such payments during the course of a year as the number of weeks any part of which the institution, club or place of accommodation is available for use by members or non members per year.
Related medical condition. “Related medical condition” refers to any medical condition that is related to or caused by pregnancy or childbirth or the state of seeking to become pregnant, including, without limitation, infertility, gestational diabetes, pregnancy-induced hypertension, hyperemesis, preeclampsia, depression, miscarriage, lactation, and recovery from childbirth, miscarriage, and termination of pregnancy.
Sex. “Sex” is a combination of several characteristics, including but not limited to, chromosomes, hormones, internal and external reproductive organs, facial hair, vocal pitch, development of breasts, and gender identity.
Sexual or reproductive health decisions. “Sexual or reproductive health decisions” refers to any decision by an individual to receive or not to receive services, which are arranged for or offered or provided to individuals relating to sexual or reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion.
Statement. "Statement," when used in connection with criminal history, refers to any communications made, orally or in writing, to a person for the purpose of obtaining criminal history, including, without limitation, stating that a background check is required for a position.
Temporary help firms. "Temporary help firms" are businesses that recruit, hire, and assign their own employees to perform work or services for other organizations, to support or supplement the other organization's workforce, or to provide assistance in special work situations such as, without limitation, employee absences, skill shortages, seasonal workloads, or special assignments or projects.
Terms and conditions. "Terms and conditions" means conditions of employment, including but not limited to hiring, termination, transfers, promotions, privileges, compensation, benefits, professional development and training opportunities, and job duties.
Trade secret. “Trade secret” means information that: (i) derives significant independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, both within the workplace and in the public; and (iii) can reasonably be said to be the end product of significant innovation. The term “trade secret” does not include general proprietary company information such as the information contained in handbooks and policies. The term “regular access to trade secrets” does not include access to or the use of client, customer, or mailing lists or other information regularly collected in the course of business. In considering whether information constitutes a trade secret for the purposes of an exemption under § 8-107(24)(b)(2)(E) of the Administrative Code, the Commission will consider various factors, including: (1) efforts made by the employer to protect and develop such information for the purpose of increasing competitive advantage; (2) whether the information was regularly shared with entry level and non-salaried employees and supervisors or managers of such employees; (3) what efforts would be required to replicate such information by someone knowledgeable within the field; (4) the value of the information to competitors; and (5) the amount of money and effort expended by the employer to develop the information.
Transgender. “Transgender” – sometimes shortened to “trans” – is a term used to describe a person whose gender identity does not conform with the sex assigned at birth.
(Amended City Record 7/6/2017, eff. 8/5/2017; amended City Record 11/24/2017, eff. 12/24/2017; amended City Record 2/7/2019, eff. 3/9/2019; amended City Record 3/3/2021, eff. 4/2/2021)