Hiring Practices in Prison Education:Part One, Protect Ya Neck​Respectfully, Jose Pineda

I often hear people say: “The people who are closest to the problem are also closest to the solutions.” People with decision-making titles are often eager to amplify the embodied wisdom of survivors; yet, those leadership positions remain occupied by allies in the fight for social justice rather than the directly-impacted veterans beside them. The gap between rhetoric and reality is reinforced everyday in the nonprofit-industrial-complex. When it comes to college programs in New York prisons, the chasm is quietly turning into an echo chamber. This text is food for thought.

New York passed Proposition 1 on November 2, 2024. This amendment to the State Constitution, effectively expands constitutional protections against discrimination. While anti-discrimination protections already existed in various federal, state and local laws, this amendment lowers barriers and raises stakes. Experts say new theoretical legal arguments are likely to follow the implementation of these new provisions. In the next couple of years, Courts will decide cases that set new precedents in New York. The Equal Rights Amendment, passed 60 years after the Civil Rights Act that created protected classes, does more than just reinforce existing protections–it reminds us that those protections exist in the first place. Maybe people will pay more attention to the potential consequences of forcing job applicants to undergo a DOCCS volunteer application prior to a conditional offer of employment.

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Law and Hiring Practices

Law	Key Operations	Questions Employers Cannot Ask	Jurisdiction
New York State Constitution Article I, § 11 (amended 2024)	Applies broadly to state actions and policies to ensure non-discrimination and equal protection.	Any questions related to protected characteristics such as race, gender, or age.	Applies to all governmental entities and public employers within New York State.
NYSHRL	Enforces non-discriminatory practices through state agencies and courts.	Questions about race, gender, sexual orientation, age, disability, or criminal history at the pre-offer stage.	Applies to all private and public employers, housing providers, and businesses in New York State with four or more employees.
N.Y. Executive Law § 296(1)(a)	Applies to employers, requiring compliance with anti-discrimination policies in hiring and employment.	Questions implying bias against protected classes such as ethnicity, religion, or family status.	Covers employers statewide in New York with four or more employees, including private, public, and non-profit employers.
N.Y. Executive Law § 296(1)(d)	Regulates job applications and interviews to avoid discrimination at the pre-employment stage.	Questions about disability, marital status, pregnancy, or gender identity.	Applies to all employers and employment agencies operating within New York State.
Ban-the-Box Laws	Prohibits employers from including criminal history questions on initial job applications.	Questions about arrests or convictions before a conditional offer is made.	Applies to private and public employers within New York State with four or more employees.
N.Y. Executive Law § 296(16)	Restricts employers from disqualifying applicants solely on the basis of prior convictions.	Questions about sealed records, juvenile offenses, or arrests not leading to convictions.	Applies to private and public employers in New York State with four or more employees.
N.Y. Correction Law Article 23-A	Mandates an assessment of the nature of the offense and its relevance to the job.	Questions implying automatic disqualification due to criminal records.	Applies to all employers in New York State hiring for jobs performed within the state.
Title VII of the Civil Rights Act	Regulates hiring, promotion, compensation, and workplace environment practices.	Questions about religion, cultural practices, or national origin that are not job-related.	Applies to employers nationwide with 15 or more employees, including private, public, and federal employers.
Age Discrimination in Employment Act (ADEA)	Applies to hiring, promotions, layoffs, and benefits.	Questions about age, date of birth, or year of graduation from high school or college.	Applies to employers nationwide with 20 or more employees, including federal, state, and local governments.
Americans with Disabilities Act (ADA)	Requires reasonable accommodations and prohibits discriminatory hiring practices.	Questions about medical conditions, past illnesses, or disabilities unless job-related and discussed post-offer.	Applies to employers nationwide with 15 or more employees, including private, public, and non-profit organizations.

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The Department of Corrections and Community Supervision (DOCCS) requires volunteer applicants to disclose personal information (e.g., age, gender, sex, marital status, etc.). This violates anti-discrimination legislation, both old and new. It may seem easier to bury one's head in the sand, but if campuses continue to look the other way–college in prison programs will face more than theoretical arguments. They run the risk of legal action, individually and as the target of a class action for inclusion will be infused with the embodied wisdom of Jailhouse Lawyers. That challenge should not be taken lightly. The Prison Litigation Reform Act of 1996 does not apply to formerly incarcerated community members. When we are released from prison, we regain our right to access the courts like everyone else.
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In response to New York's expanded Equal Rights Amendment, institutions must take proactive steps toward compliance and transformation. Organizations should revise hiring practices by conducting independent screenings and extending offers based on qualifications before addressing access requirements. Legal compliance demands the elimination of questions about protected characteristics and full implementation of Ban-the-Box laws, delaying background checks until after conditional offers. Enhanced transparency requires documented interview notes, hiring deliberations, and clear explanations for decisions to protect against discrimination claims. These measures ensure alignment with the constitutional protections taking effect January 1, 2025.

Conclusion

Current hiring practices are jeopardizing the future of college in prison in New York State. The problematic questions raised by DOCCS volunteer application process are creating an identifiable pattern that will require disclosure in a court of law. Campuses are making themselves unnecessarily vulnerable by capitulating to the pressure of prison administrations. By failing to align with state and federal protections, institutions jeopardize their mission to provide transformative education and expose themselves to potential lawsuits. If you are a champion of college in prison programming, think about how your campus administration would respond to a class action lawsuit costing the college millions of dollars. Immediate action is essential to protect against legal challenges and ensure these programs fulfill their public promises.