Trathony Griffin and Michael Godwin, Appellants,v.Sirva, Inc. and Allied Van Lines, Inc., Respondents.BriefN.Y.March 28, 2017To be Argued by: STUART LICHTEN (Time Requested: 30 Minutes) CTQ-2016-00002 Court of Appeals of the State of New York TRATHONY GRIFFIN and MICHAEL GODWIN, Appellants, – against – SIRVA, INC. and ALLIED VAN LINES, INC., Respondents. –––––––––––––––––––––––––––––– ON APPEAL FROM THE CERTIFIED QUESTION BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 15-1307-CV BRIEF FOR APPELLANTS LICHTEN & BRIGHT, P.C. Attorneys for Appellants 373 Park Avenue South, 9th Floor New York, New York 10016 Tel.: (646) 588-4870 Fax: (646) 588-4877 TABLE OF CONTENTS TABLE OF AUTHORITI ES ................................... ii JURISDICTION ............................................ 1 CERT IFIED QUESTIONS ..................................... 1 FACTS ..................................... , ............. 2 STATEMENT OF THE CASE ...... . ............................ 4 ARGUMENT I . LIABILI TY UNDER SECTION 296(15) IS NOT LIMITED TO EMPLOYERS .......................... 5 II. ALTERNATIVELY, "EMPLOYERS" INCLUDE ENTITIES WHICH EXERCISE A SIGNIFICANT LEVEL OF CONTROL OVER DISCRIM I NATION POLICIES AND PRACTICES ... 10 I II. AIDING AND ABETTING LIABILITY APPLIES I N THESE CIRCUMSTANCES ........ .. .............. 15 CONCLUSION ............................................. 18 i TABLE OF AUTHORITIES Cases Acosta v. New York City Dep't of Educ., 16 N.Y.3d 309, 921 N.Y.S.2d 633, 946 N. E.2d 731 (2011) ... . . . . ...... ...... .. .. . . 6-8 Alie v. NYNEX Corp . 158 F . R.D . 239 (S.D . N. Y. 1994) 12 Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 528 N. Y.S.2d 519, 523 N.E . 2d 806 (1988} ... .. . . . .. . . . . . .. . .. ..... . ... . . ....... . . . .. .. 6 Carey v. Binghamton Press Co. , Inc . , 67 A.D . 2d 231 (4th Dep ' t 1979) . . . ...... ........ . .... . .... ........ . . . . .. . . . .... . .. . . .. 16 Dantuono v. Davis Vision , Inc . , 2009 WL 5196151 (E . D. N. Y. Dec . 2 9, 2 0 0 9) .... . ...... .. .... . . . .. .... .................... 14 Dunson v . Tri-Maintenance & Contractors , Inc., 171 F. Supp. 2d 103 (E.D . N. Y. 2001) ... . .. ........ . ... ....... 15 Goyette v. DCA Advertising Inc., 830 F. Supp . 737 (S.O . N.Y. 1993) ........ .... .... . . . ...... . ... ... ... .... . .. .. .... .. . .... 13 National Org. for Women v. State Diiv'n of Human Rights, 34 N.Y.2d 416, 358 N.Y . S . 2d 124, 34 N.E . 2d 867 (1974) . ...... . ........ . . . .. . . .. . ... .. . . .. . . . .... .... . ... . . . .. 15 People v. Holiday Inns, Inc . , 1993 WESTLAW 30933 (W.O.N . Y. Jan . 28, 1993) . . ... .. . . ...... . .... . ..... ......... · .... .. . . .. 13 Santos v . Brookdale Hosp . Med . Ctr . , 29 Misc . 3d 1207(A), 958 N. Y.S.2d 310 (Sup . Ct., Kings Cty. 2010) . . . . . . . . . . . . . 13 Spirt v . Teachers Ins . and Annuity Ass ' n, 691 F.2d 1054 (2d Cir. 1982), cert. granted on other grounds, 468 u.s . 1223 (1983) .. . . . . . . . ....... . .. ... .... . ............ 13 Stanley v. Guardian Security Services , Inc., 800 F. Supp . 2d 550 (S . D. N.Y. 2011) . . ... ... .. ......... . . .. . ... .. . . . . . .. . . . 14 State Div ' n of Human Rights v. GTE Corp., 109 A. D.2d 1082, 487 N. Y. S . 2d 234 (4th Dep't 1985) ...... ............... ..... 13 Tomka v. Seiler, 66 F.3d 1295 (2d Cir. 1995) ... . . . . . . ....... 15 United States v. Yonkers, 592 F . Supp. 570 (S . D. N.Y . 1984). 13 11 Vanguard Justice Society, Inc . v. Hughes , 471 F. Supp . 670 ( D . Md . 1 9 7 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Voltaire v . Home Services Systems, Inc . , 823 F. Supp. 2d 77 (E.D .N. Y. 2011) .... . ......................... .. . . . . . . . . .. . . . 14 Statutes 42 u.s.c . § 1981 .. . . . .. . . .. . .. . .... . ..... . ... ..... . . . ... .. .. . 4 Civil Rights Act of 1964, 42 U.S . C . § 2000e et seg ............ 12 Correction Law § 7 52 . . . . ... . . .. ......... . .... . .... .... . .... . . 5 Correction Law § 753 (1) ............. .. . .... . .... .. ........... 7 Executive Law § 292 ( 1) ........ . .... . . . ......... . .. ... .. .... . . 9 Executive Law § 296 . .... .. . .............. . . . . .. . . .. . . . . .. . . .. 4 Executive Law § 296(1) . ... . . . .. . . . ... . ..... . . .. . ......... 8, 11 Executive Law § 296(1-a) ............... .. . . . ... . ....... . .. . .. 8 Executive Law § 296(3) ...................... . .......... .. 8, 11 Executive Law § 296(10) . . .. . . . .. . . . ... .. .. ... .. ........ . . 8, 11 Executive Law § 29 . . . . . . . .. . .. . . . . . .. . . .... . ... . .... . 5, 7, 9-11 Executive Law § 286 (16) ........ . .... . ..... . .. . . . . ... .. .... .. 11 Fair Labor Standards Act, 29 U.S.C. § 201 ......... . .... . ... . . 4 Labor Law .... . ... .............. . ..... . ... . ... ... . .... . . . .. .. . 4 Labor Law§ 198- a . . .. ... . .. . . . . . . .. ... .. ... . ... . ..... .. . . . . . . 11 Labor Law § 198-d . . .. ... .. . . .. . ... . .... . ......... . ..... . ... .. 11 Labor Law § 201 - d . . . . .... . .... . ..... . ... ... .. ... .. .. ..... . ... 11 Labor Law § 203 .. . . .... . ... .. .... . .... . .... . ... .. . ......... . . 11 lll Law Review Article Meltsner, Caplan & Lane , An Act to Promote the Rehabilitation of Criminal Of fenders in the State of New York, 24 Syracuse L . Rev . 885 (1973) . ........ .. .. ... . . . .. . .......... . . . . .. . .......... . ... 6 lV COURT OF APPEALS STATE OF NEW YORK - ------------------------------- -------X TRATHONY GRIFFIN and MICHAEL GODWIN, Pl aintiffs-Appellants, - against - SIRVA, INC., and ALLIED VAN LINES, INC., Defendants-Respondents . ---------------------------------------X CTQ-2016-00002 BRIEF FOR PLAINTIFFS-APPELLANTS Plaintiffs-appellants Trathony Griffin ("Griffin") and Michael Godwin {"Godwin") submit this brief regarding questions certified to this Court by the United States Court of Appeals for the Second Circuit. JURISDICTION This Court, pursuant to Section 500.27 of the Rules of Practice, accepted the certification of questions by the United States Court of Appeals for the Second Circuit. CERTIFIED QUESTIONS (1) Does Section 296(15) of the New York State Human Rights Law, prohibiting discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party's "employer"? (2) If Section 290(15) is l imited to an aggrieved party's "employer", what is the scope of the term "employer" for these purposes, i.e., does it include an employer who is not the aggrieved party's "direct employer", but who through an agency relationship or other means, exercises a significant level of control over the discrimination policies and practices of the aggrieved party's "direct employer"? (3) Does Section 296(6) of the New York State Human Rights Law, providing for aiding and abetting liability, appl y to § 296 (15) such that an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer's violat ion of§ 296 (15)? FACTS Griffin was employed by Astro Moving and Storage Co., Inc. ("Astro"), as a laborer from about August 2008 until his discharge on or about February 11, 2011. A-37. Godwin was employed by Astro as a laborer from on or about May 22, 2010, until his discharge on or about February 11, 2011. A-35 . SIRVA is the holding company for Allied, also a moving company. A-22 . In June 2010, Allied and Astro entered into a written agreement, effective May 1, 2010, to December 8, 2015 ("agency contract"), under which Allied appointed Astro a limited agent of 2 Allied. A-60. Pursuant to Rule 5 of the agency contract, any Astro employees who "conduct the business of Allied at customer's home or place of business must have successfully passed a criminal background screen . . . as specifically approved by Allied." A-63 . If Astro uses "unscreened labor" on an Allied shipment, Astro would be subject to a $1,000 fine on the first occurrence and a $5,000 fine on each subsequent occurrence. A- 64 . Under Allied's rules, any individual who has been convicted of any sexual offense, whether felony or misdemeanor, no matter how many years ago, automatically fails the screen and i s prohibited from working for an Allied customer . A-71-72 . Convictions for felony assault and robbery also bar employment for life . A-72. SIRVA has entered into a written agreement with HireRi ght Solutions , Inc . ("HireRight"), pursuant to which HireRight conducted background investigations of individuals at SIRVA's request. A-75. On February 8, 2011, Astro, at Allied's behest, required Griffin and Godwin to sign Background Investigation Consent forms authorizing SIRVA "and/or its agents" to investigate their criminal records . A-79-80. The investigation report showed that on October 30 , 1997 , Griffin had been convicted of sexual abuse in the first degree for an offense which occurred on or about April 21, 1997, and that on September 13, 1999 , Godwin had been 3 convicted of rape in the first degree for an offense which occurred on or about October 26, 1998. A-35, 37. In e-mai1s dated February 10 , 2011, HireRight informed Astro that Griffin and Godwin did not meet SIRVA's "standards." A-82. In letters dated February 10, 2011, Astro informed Griffin and Godwin that SIRVA and Allied had obtained "reports regarding potential laborers," and enclosed copies of the reports "obtained in conjunction with your consideration for qualification . " A-84 . On or about February 11, 2011, Astro discharged Griffin and Godwin. A-86- 87. STATEMENT OF THE CASE On April 14, 2011, Griffin, Godwin, and Frank Callace, filed the Complai nt, alleging violations of New York Executive Law § 296 ("Human Rights Law"); 42 U.S.C. § 1981; the Fair Labor Standards Act, 29 U. S.C . § 201 ("FLSA"); and the New York Labor Law . A-12. In a Memorandum and Order dated May 29, 2014, the District Court denied the motion of Griffin and Godwin for partial summary judgment as to liability, and granted the motion for summary judgment of SIRVA and Allied . A- 336 . On November 20, 2014, a jury found Astro liable to all three plaintiffs under the FLSA and the New York Labor Law, and found for Astro on the remaining claims brought by Griffin and Godwin. A-361. Judgment was entered April 21, 2015 . A-361. 4 On April 22, 2015, Griffin and Godwin filed a Notice of Appeal. A-366. On August 30, 2016, the United States Court of Appeals for the Second Circuit certified three questions to this Court . A-655. ARGUMENT I. LIABILITY UNDER SECTION 296(15) IS NOT LIMITED TO EMPLOYERS. The first question asks whether the prohibition on discrimination based on criminal conviction applies to entit ies other than employers. A-684 . The answer must be "yes" . The statutes at issue expressly state, contrary to almost all of New York law's other antidiscrimination provisions, that their prohibitions apply to more than just employers. Pursuant to New York law, "It shall be an unlawful discriminatory practice for any . . . corporation to deny any . . . employment to any individual by reason of his ... having been convicted of one or more criminal offenses," unless "there is a direct relationship between one or more of the previous criminal offenses and the specific . . . employment . . . held by the individual," or the "continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public . " N.Y. Executive Law § 296(15), Correction Law§ 752. "Direct rel ationship" is defined as where "the nature of criminal conduct for which the 5 person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibili t ies necessarily r e l ated to the .. . job in question . n Correction Law§ 750(3). These statutes were "enacted to further certain goa l s that the Legislature has identified as among the 'general purposes' of the Penal Law, namely, ' the rehabilitation of those convicted' and 'the promotion of their successful and productive reentry and reintegration into society . 'n Acosta v. New York City Dep't of Educ., 16 N.Y.3d 309, 314, 921 N. Y. S . 2d 633 , 634, 946 N. E. 2d 731, 732 (2011) (quot ing Penal Law§ 1.05(6)) . Studies established that the bias against employing . . . ex-offenders was not only widespread but particularly unfair and counterproductive . Although ex-offenders were urged when released from prison to find employment as a part of their rehabilitation , they had great difficulty in doing so because of their criminal records and this difficulty existed even though there was an absence of any connection between the employment . . . and the crime committed , its c i rcumstances or the background of the offender. Failure to find employment not only resulted in personal frustration but also injured society as a whole by contributing to a high rate of recidivism. Bonacorsa v. Van Lindt, 71 N.Y . 2d 605, 611, 528 N.Y.S.2d 519, 521 - 22, 523 N.E.2d 806, 808-09 (1988) (citing Meltsner, Caplan & Lane, An Act to Promote the Rehabilitat ion of Criminal Offenders in the State of New York, 24 Syracuse L. Rev. 885, 905 (1973); 1976 N.Y . Legi s . Ann., at 50) . 6 In cases where an employer contends that a "direct relationship" exis ts between the criminal offense and the job, or that continued employment of a person poses an "unreasonable risk," the employer must consider eight statutory factors: (1) the "public policy" of New York to "encourage" the employment of convicted criminals; (2 ) the "duties and responsibilities" of the job; (3) the individual's "fitness or ability to perform" those duties and responsibilities; (4) the time elapsed since the offense; (5) the person's age at the time of the offense; (6) the seriousness of the offense; (7) the person ' s rehabilitation and good conduct since the offense; (8) the "legitimate interest" of the employer in "protecting property" and the "safety and welfare" of the public. Correction Law § 753(1). "A failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive." Acosta, 16 N.Y . 2d, at 316, 921 N. Y.S . 2d, at 635, 946 N.E . 2d, at 733 (citation omitted) . The District Court concluded that "Allied and SIRVA are not plaintiffs' employers and are therefore not subject to liability under § 296(15) ." A-354 (footnote omitted) . But, to the contrary, the drafters of this provision took great pains precisely to avoid limiting its applicability solely to employers . 7 A comparison with other sections of the Human Rights Law plainly demonstrates this l egislative intent. The provision barring employment discrimination on the basis of age, race, creed, color, national origin, sexua l orientation, military status, sex, disabil ity , predisposing genetic characteristics , marital status , and domestic violence victim status, is expressly limited to an "employer or licensing agency." Exec. Law § 296(1) (a). The prohibition on discrimi nation in training programs applies only to an "employer, labor organization, employment agency or any joint labor-management committee." Exec. Law§ 296(1-a). The requirement that a disabled employee be reasonably accommodated covers "an employer, licensing agency, employment agency or labor organization." Exec . Law§ 296(3) (a) . The law imposes a religious accommodation requirement on "any employer, or an employee or agent thereof." Exec. Law § 296(10) (a). When the Legislature wanted to restrict the application of a statute to employers, it knew how to do so. The portion of the statute at issue in this case, however, is not so circumscribed. The ban on discrimination based on criminal record makes it unlawful for "any person, agency, bureau, corporation or association . . . to deny . employment to any individual" on the prohibited basis. Exec. Law § 296(15). "Person" is defined as including "one or more individuals, partnerships, associations, corporations, legal representat ives, 8 trustees in bankruptcy, or receivers . u Exec. Law§ 292(1). There is no requirement that a respondent be an employer. The cri tical inquiry therefore is whether SIRVA or Allied denied employment to Griffin or Godwin. The District Court found, however, that "to 'deny employment ' , the denying entity must be an employer .. u A- 355. This statement is simply not true . When an employer is contemplating hiring, or continuing to employ, an individual, a third party can indeed "deny employmentu to that individual. Employment brokers, temporary agencies , search firms, contract recruiters, resume referral services, and online job posting sites, among others, all can "deny employment" to an individual without necessarily acting as the "directu employer. I n sum, there is no logical reason why only an employer can deny someone employment. The Second Circuit agreed, concluding, "[W)e cannot say that [the District Court ' s] interpretation is obviously dictated by the statute's language or existing case law.u A- 670. The Second Circuit went on to note, "While the word 'employer' appears nowhere in the first half of [Section 296(15)), which addresses discrimination on the basis of a conviction, the word is used twice in the second half of the provision addressing negligent hiring practices," and continued, "[T)hat the term is used twice in the second half of the 9 provision makes its absence in the first half addressing discrimination even more glaring . " A-671-72. This is prudent statutory interpretation. Indeed, if the Legislature intended to restrict liability for criminal record discrimination to employers, the Legislature would have said so, as it did in many other situations . See, Figure 1. The only logical conclusion is that the Legislature specifically did not use the term "employer" in Executive Law Section 296(15) because it indeed intended to cast a wider net . II. ALTERNATIVELY, "EMPLOYERS" INCLUDE ENTITIES WHICH EXERCISE A SIGNI FICANT LEVEL OF CONTROL OVER DISCRIMINATION POLICIES AND PRACTICES. Even if the Court were to find criminal conviction anti- discrimination law only applied to "employers," the Second Circuit found "reason to believe that the definition of 'employer' could be broader in the context of Section 296(15) ." A-670. The appellate court noted that "it is unlikely that a New York company would be bound by a contractual term to apply a policy that explicitly discriminates on the basis of race or sex," since such discrimination is barred in all 50 states . A- 670. Discrimination on the basis of criminal conviction, however, is not unlawful in several jurisdictions, including Illinois, the principal place of business of Allied and Sirva. "Thus, Section 296(15) may be distinguishable from other 10 provisions of the NYSHRL having to do with discrimination on the basis of race or sex, and may well require a broader definition of 'employer ' to effectuate its prohibition against discrimination." A- 670-71 . Otherwise, "an out-of-state principal corporation" will be free to "require[) its New York State agent to discriminate in employment on the basis of a criminal conviction," defeating the purpose of the Human Rights Law . A- 685 . The definition of "employer" proposed by the Second Circuit is an entity "who, through an agency relationship or other means, exercises a significant level of control over the discrimination policies and practices of the aggrieved party's 'direct employer' . " A-685 . The Second Circuit borrowed this formulation from cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S . C. § 2000e et seq . , the Federal analogue to the Human Rights Law . 11 Figure 1 aai'm ',• 7~ -,-., ··.:-:. ':T ;:.-.-:-c -~i::.rect .. - -·---;;;· -7~-· :··- .. ~.----:;, "}~ -~~ .. -~~~~ ~- Discrimination on the Basis of Age Employer, licensing agenc.y, employment agency, labor organization Color Employer, licensing agency, employment agency, labor organization Creed Employer, licensing agency, employment agency, labor organization Criminal Record Person, agency, bureau, corporation, association Disability Employer, licensing agency, employment agency, labor organization Domestic Violence Victim Employer, licensing agency Status Genetic Characteristics Employer, licensing agency, employment agency, labor organization Marital Status Employer, licensing agency, employment agency, labor organization Military Status Employer, licensing agency, employment agency, labor organization National Origin Employer, licensing agency, employment agency, labor organization Pregnancy Employer Race Employer, licensing agency, employment agency, labor organization Religion Employer Sex Employer, licensing agency, employment agency, labor organization Sexual Orientation Employer, licensing agency, employment agency, labor organization Failure to Pay Benefits Employer Failure to Pay Wages Employer Misuse of Personal Identifying Information Employer Participation in Recreational Employer, employment agency Activities Retaliation Employer, employment agency, labor organization Source: N.Y. Executive Law§ 296 (l)(a), (b), (c), (e), and (g), (3)(a), (10)(a) and (c), {15), and {16); Labor Law §§ 198-a, 198-d, 20 1-d, 203 12 "The law is clear that an individual may be the employee of more than one 'employer' for Title VII purposes and that the term 'employer ' as used in Title VII is to be construed liberally . " Alie v. NYNEX Corp. 158 F . R.D . 239 , 245 (S.D . N.Y . 1994) (citations omitted). "In keeping with a liberal construction, the courts of this Circuit have held that the absence of a direct employment relationship does not bar a Title VII claim, and that liability extends beyond conventional single- employer situations . " Id. (emphasis in original; citations omitted); State Div 'n of Human Rights v. GTE Corp . , 109 A.D.2d 1082, 487 N.Y.S.2d 234 (4th Dep't 1985) (defendant employer "despite the fact that petitioner was carried on [another entity ' s) payroll") . The term "employer" is " ' sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an ' employer' of an aggrieved individual . . . . ' " Spirt v . Teachers Ins . and Annuity Ass'n, 691 F . 2d 1054, 1063 (2d Cir . 1982), cert. granted on other grounds, 463 U.S. 1223 (1983 ) (quoting Vanguard Justice Society, Inc . v. Hughes, 471 F . Supp . 670, 696 (D. Md. 1979)); Santos v. Brookdale Hosp . Med . Ctr., 29 Misc. 3d 1207(A), 958 N. Y.S. 2d 310 (Sup . Ct., Kings Cty. 2010) (important consideration whether alleged employer exercised control over employee ' s 13 conduct and incidents of employment). Courts may broadly define "employern to ensure that the purposes of anti-discrimination legislation are upheld. The key in determining whether an entity or individual is an "employern is the exertion of functional control over the individual 's pertinent conditions of employment. A "third party may exert such control over an individual 's access to a job or the job market that the third party ' s act of discrimination substantially interferes with the plaintiff's access to employment . u People v. Holiday Inns, Inc., 1993 WESTLAW 30933, at *9 (W . D. N. Y. Jan . 28, 1993). For instance, where New York State provided an employer with discriminatory exams which determined in part which individuals were hired by that employer, the state was an "employer" under Title VII. United States v . Yonkers, 592 F . Supp. 570, 589-92 (S.D.N.Y. 1984). Or, like the situation here, an entity may have "no specific involvement with the plaintiffs ' terminations," but rather "imposed" a "general labor policy" on the direct employer, and therefore "significantly affected" the direct employer's employment policies. Goyette v. DCA Advertising Inc . , 830 F. Supp. 737, 744 (S . D. N.Y. 1993). This "effective control" test gets to the heart of the matter, placing liability where it belongs, and furthering the goal of eliminating bias. 14 The Human Rights Law states, "The provisions of thi s article shall be construed liberally for the accomplishment of the purposes thereof." Executive Law § 300 . The Human Rights Law's definition of "employer" therefore should be construed at least as broadly as the Federal definition. Entities that discriminate entities should not be able to exploit overly restrictive definitions of statutory language to validate their conduct . II I. AIDING AND ABETTING LIABILITY APPLIES IN THESE CIRCUMSTANCES . The Human Rights Law's "aid and abet" language is the focus of the third certified question. A-685 . The statute makes it unlawful for "any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article [Human Rights Law], or to attempt to do so . " Exec. Law§ 296(6} (emphasis added) . A-670. "By its terms, § 296(6) of the Human Rights Law creates a 'broad[) source of personal liability' that is not limited to employers or employees." Stanley v. Guardian Security Services, Inc., 800 F. Supp . 2d 550, 557 (S.D.N.Y. 2011). "Unlike other sections of the [Human Rights Law], § 296 does not textually limit itself to employers--it states 'any person' can be liable for violations . " Dantuono v. Davi s Vision, Inc . , 2009 WL 5196151 (E.D.N.Y. Dec . 29, 2009) (citations omitted) . 15 The District Court here held that when a plaintiff seeks to sue an additional defendant, other than a direct empl oyer, and that additional defendant is a business, courts have applied the test devised to determine whether the two companies are 'joint employers . '" A- 357 {citing Voltaire v. Home Services Systems, Inc . , 823 F. Supp. 2d 77, 97 (E . D.N.Y. 2011)) . This statement is incorrect . This Court has long held that a corporate defendant which is not a joint employer may be held liable under the aiding and abetting provision. National Org. for Women v. State Div'n of Human Rights, 34 N.Y.2d 416, 421, 358 N.Y.S.2d 124, 128, 314 N.E.2d 867, 870 (1974). "Because a claim under § 296(6) may be made against a defendant who has no control or authority over plantiff, even a defendant that is an independent contractor for the employer may be held liable II Dunson v. Tri-Maintenance & Contractors , Inc., 171 F. Supp. 2d 103, 114 (E . D.N.Y . 2001). The District Court's requirement that a corporate employer be a "joint employer" to be liable under the aiding and abetting provision makes no sense. As the Second Circuit remarked, "[W]e think it would be an odd result to hold that a defendant business that 'actually participate[d] in the conduct giving rise to the discrimination claim, ' may be liable only if it is the defendant ' s 'direct employer' or if it also satisfies the 'joint 16 employer' doctrine." A-682 . The Human Rights Law cannot be read in such an illogica l fashion . In NOW, Gannett Publishing Company, Inc . , published employment want ads under separate sex designations in one of its newspapers. This Court held that listing employment advertis ing under columns captioned "Help Wanted Male" and "Help Wanted Female" constituted an unlawful employment practice, notwithstanding the lack of an employment relationship with any plaintiff. Similarly, the Fourth Department found the Binghamton Press liable for printing a help wanted advertisement which stated, "If you are an $18-25,000 caliber man, we'd like to meet you personally." Carey v. Binghamton Press Co., Inc., 67 A.D.2d 231, 233 (4th Dep't 1979). The court concluded, "(A] newspaper aids and abets sex discrimination when the body content of a published advertisement is palpably discriminatory .... " Id ., at 235. The newspapers in these cases were not joint employers, or employers at all, with regard to the unlawful practice . As with the definition of "employer", a broad construction of the "aid and abet" provision is necessary to ensure that unlawful discrimination based on criminal conviction is eradicated. If the circumstances of this case--a contractual requi rement that the direct employer discriminate, with penalties including fines and the witholding of 75 percent of the direct 17 employer ' s business, A-143--do not amount to aiding, abetting, compelling , or coercing, then nothing does . CONCLUSION For all of the above reasons, plaintiffs-appellants Trathony Griffin and Michael Godwin respectfully request that the certified questions be answered in the affirmative. Dated : New York, New York November ~' 2016 18 LICHTEN & BRIGHT, P.C. Attorneys for Plaintiffs- Appel l ants By: Stuart Lichten 373 Park Avenue South - 9 Fl . New York, New York 10016 (646) 588-4872 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLI ANCE I hereby certify pursuant to 22 NYCRR 500 . 1(j) that the foregoing brief was prepared on a computer using WordPerfect 10. Type. A Monospaced typeface was used, as follows: Name of typeface: Point size: Line spacing : Courier New 12 Double Word Count. The total number of words in this brief, inc l usive of point headings and footnotes and exclusive of pages containing the table of cont ents, table of citations, proof of service, certificate of compliance, corporate discl osure statement, questions presented, statement of related cases , or any authorized addendum containing statutes, rules, regulations, Dated: New York, New York November 9, 2016 STUART LICHTEN LICHTEN & BRIGHT, P . C . Attorneys for Appellants 373 Park Avenue South, gth Fl. New York, New York 10016 (646) 588-4870