[HISTORY: Adopted by the Rochester City Council as indicated in article histories. Amendments noted where applicable.]
Article I General Provisions
Article II Fair Employment Screening
[Adopted 5-15-2001 by Ord. No. 2001-131]
[Amended 7-22-2014 by Ord. No. 2014-195]
The Council hereby finds and declares that the City has the responsibility to act to assure that every individual within this City is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice or intolerance in employment, housing, public accommodations and financing practices based upon age, race, creed, color, national origin, gender, gender identity or expression, sexual orientation, disability or marital status, not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the City and its inhabitants.
When used in this chapter, the following terms shall have the following definitions:
- Includes only persons who are 18 years of age and older.
- BONA FIDE OCCUPATIONAL QUALIFICATION
- A qualification reasonably necessary to the operation of a particular business.
- COMMERCIAL SPACE
- Any space in a building, structure or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied for the manufacture, sale, resale, processing, reprocessing, displaying, storing, handling, garaging or distribution of personal property; and any space which is used or occupied, or is intended, arranged or designed to be used or occupied, as a separate business or professional unit or office in any building, structure or portion thereof.
- The right conferred upon a person by a creditor to incur debt and defer its payment, whether or not any interest or finance charge is made for the exercise of this right.
- Any person or financial institution which extends credit or arranges for the extension of credit by others.
- Religion and all aspects of religious observance and practice, as well as belief; provided, however, that in all provisions of this chapter dealing with employment, the term shall be limited to religious observances and practices which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.
- A. A physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques;
- B. A record of such an impairment; or
- C. A condition regarded by others as such an impairment; provided, however, that in all provisions of this chapter dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.
- D. However, as used in this chapter, the term "disability" shall not include any conditions or disorders which are excluded from coverage under the Federal Americans With Disabilities Act.[Added 6-28-2001 by Ord. No. 2001-221]
- DISCRIMINATION, DISCRIMINATE or DISCRIMINATORY
- Any direct or indirect act, policy or practice of exclusion,
distinction, restriction, segregation, limitation, refusal, denial,
or any other act or practice of differentiation or preference based
on, or the perception of, age, race, creed, color, national origin,
gender, gender identity or expression, sexual orientation, disability
or marital status; or the aiding, abetting, inciting, coercing or
compelling thereof.[Amended 7-22-2014 by Ord. No. 2014-195]
- DISTINCTLY PRIVATE
- Any private club, institution or membership organization, except that it shall not include any club, institution or membership organization that has more than 100 members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of a nonmember for the furtherance of trade or business.
- DWELLING, DWELLING UNIT and TWO-FAMILY DWELLING
- Shall have the same meaning as set forth in § 120-208 of the Municipal Code.[Amended 11-19-2002 by Ord. No. 2002-354]
- Does not include any individual employed by his or her parents, spouse or child, or in the domestic service of any person.
- Does not include any employer with fewer than four persons in his or her employ.
- EMPLOYMENT AGENCY
- Any person undertaking to procure employees or opportunities to work.
- FINANCIAL INSTITUTION
- Banks and trust companies, private bankers, foreign banking corporations and national banks, savings banks, licensed lenders, savings and loan associations, credit unions, sales finance companies, insurance premium finance agencies, insurers, credit card issuers, mortgage brokers, mortgage companies, mortgage insurance corporations, wholesale and retail merchants and factors, bonding companies, surety companies, or other commercial institutions that extend secured or unsecured credit or offer insurance.
- Includes the biological and/or social characteristics of gender and gender identity.
- GENDER IDENTITY OR EXPRESSION
- Having, or being perceived as having, a gender identity,
self-image, appearance, behavior or expression, whether or not that
gender identity, self-image, appearance, behavior or expression is
different from that traditionally associated with the sex assigned
to that person at birth.[Added 7-22-2014 by Ord. No. 2014-195]
- Any building, structure, or portion thereof, which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings.
- LABOR ORGANIZATION
- Any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment.
- MARITAL STATUS
- The status of being married, unmarried, divorced, separated, or widowed.
- NATIONAL ORIGIN
- Ancestry, persons not citizens and their descendants, and persons naturalized and their descendants.
- One or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.
- PLACE OF PUBLIC ACCOMMODATION, RESORT OR AMUSEMENT
- All providers, whether licensed or unlicensed, of goods, services, facilities, accommodations, advantages, amusements and privileges of any kind, and places, whether licensed or unlicensed, where goods, services, facilities, accommodations, advantages, amusements and privileges of any kind are extended, offered, sold or otherwise made available to the general public, or that receive financial support through the general public or through governmental subsidy of any kind. Such term shall not include any institution, club or place of accommodation which proves that it is in its nature distinctly private.
- REAL ESTATE BROKER
- Any person, firm or corporation who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, at auction or otherwise, exchanges, buys or rents, or offers or attempts to negotiate a sale, at auction or otherwise, exchange, purchase or rental of an estate or interest in real estate, or collects or offers or attempts to collect rent for the use of real estate, or negotiates, or offers or attempts to negotiate, a loan secured or to be secured by a mortgage or other encumbrance upon or transfer of real estate.
- REAL ESTATE SALESPERSON
- A person employed by a licensed real estate broker to list for sale, sell or offer for sale, at auction or otherwise, to buy or offer to buy or to negotiate the purchase or sale or exchange of real estate, or to negotiate a loan on real estate, or to lease or rent or offer to lease, rent or place for rent any real estate, or who collects or offers or attempts to collect rent for the use of real estate for or in behalf of such real estate broker.
- REASONABLE ACCOMMODATION
- Actions taken which permit an employee, prospective employee or member with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held or which permit an employee's or a prospective employee's religious observance or practice; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested.
- The practice of denying financing, credit or insurance based on discrimination as to the applicant or the neighborhood in which the applicant resides or is seeking to reside.
- SEXUAL ORIENTATION
- Homosexuality, heterosexuality, bisexuality or asexuality, whether actual or perceived.
It shall be unlawful, due to discrimination, for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, to directly or indirectly:
Refuse, withhold from, deny or charge a higher rate for any goods, services, facilities, accommodations, advantages, amusements or privileges of any kind, including the extension of credit; or
Publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the goods, services, facilities, accommodations, advantages, amusements or privileges of any kind of any such place shall be refused, withheld from, denied or charged a higher rate to any person, or that the patronage or custom thereat of any person is unwelcome, objectionable or not acceptable, desired or solicited.
Nothing in this section shall be construed to prevent the barring of any person, because of the gender of such person, from a place of public accommodation, resort or amusement based on bona fide considerations of public policy.
It shall be unlawful to directly or indirectly do the following:
For any employer or licensing agency, due to discrimination, to refuse to hire or employ or to bar or to discharge from employment, suspend or demote any person, or to discriminate against any person in compensation or in terms, conditions or privileges of employment;
For any employment agency, to discriminate against any person in receiving, classifying, disposing or otherwise acting upon applications for its services or in referring an applicant to an employer;
For any labor organization, due to discrimination, to exclude or to expel from its membership any person, or to discriminate against any of its members or against any employer or any person employed by an employer;
For any person, due to discrimination, to exclude any person from participation in a guidance program, an apprenticeship training program or other occupational training or retraining program, or to discriminate against any person in the terms, conditions or privileges of such program; or
For any employer or employment agency or person to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment, guidance program or training program or to make any inquiry in connection with prospective employment, a guidance program or training program which expresses, directly or indirectly, any discrimination, or any intent to discriminate, unless based upon a bona fide occupational qualification; provided, however, that neither this subsection nor any provision of this chapter shall be construed to prohibit the City from requesting information from applicants for civil service examinations for the purpose of conducting studies to identify and resolve possible problems in recruitment and testing to ensure the fairest possible and equal opportunities for employment in the civil service for all persons.
It shall be unlawful, due to discrimination, for the owner, lessee, sublessee, assignee, or managing agent of, real estate broker, real estate salesperson or other person having the right to sell, rent or lease real property, housing or commercial space, constructed or to be constructed, or any officer, agent or employee thereof:
To refuse to show, sell, transfer, rent, lease or refuse to receive and transmit any bona fide offer to buy, sell, rent or lease any real property, housing or commercial space;
To discriminate against any person in the terms, conditions or privileges of the sale, rental or lease of any real property, housing or commercial space or in the furnishing of facilities or services in connection therewith; or
To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for the purchase, rental or lease of real property, housing or commercial space or to make any record or inquiry in connection with the prospective purchase, rental or lease of real property, housing or commercial space which expresses, directly or indirectly, any discrimination or any intent to discriminate, but nothing in this subsection prohibits using a form or making a record or inquiry for the purpose of required government reporting.
The provisions of this section shall not apply:
To the rental of a dwelling unit in a two-family dwelling, if the owner or members of the owner's family reside in one of such dwelling units;
To the restriction of the rental of all rooms in a dwelling to individuals of the same gender;
To the rental of a room or rooms in a dwelling if the renter or lessee would share common living areas with the owner or lessor or members of the owner's or lessor's family; or
Solely with respect to age, to the restriction of the sale, rental or lease of housing exclusively to persons 55 years of age or older.
It shall be unlawful for any financial institution or any officer, agent or employee thereof:
To discriminate in the granting, withholding, extending or renewing, or in the fixing of the rates, terms or conditions of, any form of financial assistance, insurance or credit, except to the extent of a federal statute or regulation applicable to such a transaction;
To use any form of application for financial assistance, insurance or credit or use or make any record or inquiry which expresses, directly or indirectly, any discrimination or intent to discriminate, unless the inquiry is for the purpose of determining the applicant's creditworthiness or insurability; or
To engage in redlining.
It is unlawful for any person engaging in any activity to which this chapter applies to retaliate or otherwise discriminate against any person because he or she has opposed any practices forbidden under this chapter or because he or she has filed a complaint, testified or assisted in any proceeding under this chapter.
It shall not be a violation of this chapter for a religious organization or institution, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to restrict employment, or any of its facilities, housing or accommodations that are operated as a direct part of religious activities, to persons of the same denomination, or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.
This chapter shall not apply to the United States Government, the State of New York or the County of Monroe, or their departments, subdivisions, agencies, public authorities, officers or employees.
A distinctly private club, institution or membership organization may apply such selective criteria as it chooses in the selection of its members without being in violation of this chapter, and any club, institution or membership organization, whether distinctly private or not, may restrict its services, facilities and privileges solely to its members.
It shall not be a violation of this chapter for any person or the City to develop a bona fide affirmative action plan to overcome the effects of past discrimination or that is otherwise consistent with federal and New York State law, and to take action not otherwise prohibited by federal and New York State law to carry out such a plan.
[Amended 6-28-2001 by Ord. No. 2001-221]
It shall not be a violation of this chapter for an employer to enact, agree to or enforce reasonable anti-nepotism or anti-fraternization policies.
It shall not be a violation of this chapter for an employer to establish a compulsory retirement age which is in accordance with federal and state law.
It shall not be a violation of this chapter for a financial institution to establish insurance rates with distinctions based on age, gender or marital status as long as such distinctions are supported by and reflective of actuarially sound statistical data.
It shall not be a violation of this chapter for any person to establish or implement a policy offering discounts for senior citizens or persons with a disability.
It shall not be a violation of this chapter for any place of public accommodation, resort or amusement to establish or implement a policy restricting admission to persons over a certain age or restricting the sale of alcoholic beverages to persons over a certain age.
It shall not be a violation of this chapter for any person to discriminate on the basis of age when such discrimination is required by federal, state or local law.
It shall not be a violation of this chapter for any person to establish a recreational program or athletic competition with distinctions based on gender or age, or to establish physical standards which reasonably take into account gender or age.
It shall not be a violation of this chapter for any employer to:
[Added 6-28-2001 by Ord. No. 2001-221]
Prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
Require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
Require that employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.);
Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the employer holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.
Editor's Note: This ordinance also repealed former Subsection L, regarding on organization's freedom of expression.
It shall not be a violation of this chapter for any person to:
[Added 6-28-2001 by Ord. No. 2001-221]
Any person claiming to be aggrieved by an alleged discriminatory practice in violation of this chapter is encouraged to seek mediation of said grievance at the Center for Dispute Settlement. Such mediation shall not be a prerequisite to the commencement of legal action as provided in this section.
Any person claiming to be aggrieved by an alleged discriminatory practice in violation of this chapter shall have a cause of action in any court of appropriate jurisdiction for injunctive relief, compensatory and punitive damages and such other remedies as may be appropriate.
Any action brought for violation of this chapter must be commenced within one year after the alleged discriminatory practice.
No cause of action for violation of this chapter shall lie where the party aggrieved has initiated a civil action in any court based upon the same grievance which is the subject of the cause of action, unless such civil action has been voluntarily discontinued or withdrawn by the party aggrieved.
[Amended 6-28-2001 by Ord. No. 2001-221]
No cause of action for violation of this chapter shall lie where the party aggrieved has filed a complaint with the New York State Division of Human Rights based upon the same grievance which is the subject of the cause of action, unless such complaint has been voluntarily discontinued or withdrawn by the party aggrieved.
[Amended 6-28-2001 by Ord. No. 2001-221]
The remedies provided herein shall be separate and distinct from remedies provided in other laws, rules or regulations, and shall not be construed by any court to be a prerequisite to an action or proceeding commenced pursuant to such other laws, rules or regulations.
If any clause, sentence, paragraph or part of this chapter or the application thereof to any person or circumstances shall, for any reason, be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this chapter.
[Adopted 5-20-2014 by Ord. No. 2014-155]
Editor’s Note: Section 2 of this ordinance stated that the City would make information about its provisions available to the public and to vendors and other interested persons. Section 3 of this ordinance provided that the criminal history record checks in connection with employment required by § 6B-2 of the City Charter be conducted in compliance with the provisions of this article. This ordinance also provided an effective date of 180 days after its adoption.
The City of Rochester, its vendors, and any employer located within the City of Rochester shall not make any inquiry regarding or pertaining to an applicant's prior criminal conviction on any initial employment application. Consideration of an applicant's prior criminal conviction(s) shall take place only after an employment application is submitted and after any initial employment interview.
For purposes of this article, the following terms shall have the following meanings:
- Any person considered or who requests to be considered for employment by an employer.
- The City of Rochester, its departments, administrative units and agencies.
- CRIMINAL CONVICTION
- Entry of a plea of guilty, or a verdict of guilty, for a misdemeanor or felony offense in this state or any other jurisdiction.
- The City, its vendors, or any entity that employs persons in any position for which the primary place of work is located within the City of Rochester, including a person, partnership, company, business corporation, limited liability company, public corporation, labor organization, not-for-profit corporation, or association. "Employer" shall also include temporary, job placement, referral, or other employment agencies. "Employer" shall not include an employer with fewer than four persons in its employ.
- Any work for pay, including temporary or seasonal work, contracted work, contingent work, and work through the services of a temporary, job placement, referral, or other employment agency, for any work or position for which the primary place of work is located within the City of Rochester. "Employment" shall not, for the purposes of this article, include employment by any government law enforcement agency or any position classified as a police officer or peace officer pursuant to the Criminal Procedure Law.
- Any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant's qualifications.
- Any vendor, contractor, or supplier of goods or services to the City of Rochester, including vendors located outside the City of Rochester limits.
It shall be an unlawful discriminatory practice for the City, its vendors, and any employer located within City limits to make any inquiry regarding, or to require any person to disclose or reveal, any criminal conviction during the application process. The "application process" shall be deemed to begin when the applicant inquires about the employment sought and shall end when an employer has conducted an initial employment interview or made a conditional offer of employment.
If an employer does not conduct an interview, that employer must inform the applicant whether a criminal background check will be conducted before employment is to begin.
The City, its vendors, and any employer hiring for licensed trades or professions, including positions such as interns and apprentices for such licensed positions, may make an inquiry of applicants about prior criminal convictions if such inquiry is required by a licensing authority or by New York State or federal law.
The City, its vendors, and any employer hiring for positions where certain convictions are a bar to employment in that position under New York State or federal law shall not be prohibited from making inquiries about those convictions during the application process.
The City, its vendors, and any employer shall comply with Article 23-A of the New York State Correction Law and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., when considering an applicant's prior criminal convictions in determining suitability for employment. In accordance with Article 23-A, nothing in this article shall be construed to limit an employer's authority to withdraw conditional offers of employment for any lawful reason, including the determination that the candidate has a conviction that bears a direct relationship to the duties and responsibilities of the position sought, or that hiring would pose an unreasonable risk to property or to the safety of individuals or the general public.
In compliance with Executive Law § 296, Subdivision 16 (Human Rights Law), and the Family Court Act, employers are prohibited from asking at any time for applicants to disclose information about any arrest that resulted in a youthful offender adjudication pursuant to Criminal Procedure Law § 720.35; any arrest that was processed as a juvenile delinquency proceeding in Family Court; any arrest that resulted in a sealing pursuant to Criminal Procedure Law (CPL) § 160.50 or CPL § 160.55; any conviction that was sealed pursuant to CPL § 160.58, unless said inquiry is specifically required or permitted by New York State or federal law.
The prohibitions of this article shall not apply if the inquiries prohibited herein are specifically authorized by any other applicable law.
The prohibitions of this article shall not apply to applicants for positions in the City Police Department or the Fire Department, or to any other employer hiring for "police officer" and "peace officer" positions, as defined by Criminal Procedure Law § 1.20 or 2.10.
Any person aggrieved by a violation of this article may commence a civil action or proceeding for injunctive relief, damages, or other appropriate relief in law or equity against any person or employer who violates this article. In any such action or proceeding, the court may allow the party commencing such action or proceeding, if such party prevails, costs and reasonable attorney's fees as part of the relief granted.
Any action brought for violation of this chapter must be commenced within one year after the alleged violation of this article.
The remedies provided herein shall be separate and distinct from remedies provided in other laws, rules or regulations and shall not be construed by any court to be a prerequisite to an action or proceeding commenced pursuant to such other laws, rules or regulations. The provisions of this article shall not be construed to diminish the rights of an applicant under any other law.
The Corporation Counsel may, in his or her discretion, bring an action to restrain or prevent any violation of this article or any continuance of any such violation, in any court of competent jurisdiction, and may further seek the imposition of the following penalties or a combination thereof: