Important New Ruling on Race Discrimination Class Action Involving Criminal Background Checks

April 12, 2017 | Bryan Barajas

In a class action alleging that the criminal background policy of Washington Metro Area Transit Authority (WMATA) had a disparate impact on African-Americans, a federal district court recently certified three classes of African-American employees and applicants despite the employer’s workforce being 75% African-American. The ruling is a “must read” for employers that conduct criminal background screens in their hiring process.

This lawsuit against the WMATA and three of its contractors alleged that, while criminal background information can be a legitimate tool for employers to screen job applicants, WMATA’s background check policy is overly broad and unnecessarily punitive. The suit further alleged that WMATA’s policy goes far beyond any legitimate public safety concerns to permanently stigmatize and bar from employment well-qualified individuals, a disproportionate number of whom are African Americans. For example, under WMATA’s policy, a person who has ever had a felony conviction for drug possession is permanently disqualified from employment in a wide range of jobs, including bus operator and custodian, even if the applicant has been drug-free and held a steady job for ten to 20 years.

WMATA argued that the policy was adopted as a business necessity to govern how and when individuals with criminal convictions can be employed with WMATA and its contractors.

One of the Plaintiffs, Erick Little, who was employed as a bus driver by Ride-On in Montgomery County, was denied a job as a WMATA bus operator based on a 26-year-old conviction for drug possession committed when he was 19 years old (for which he served six months in a work release center and 12 months of probation).

Another Plaintiff, Lawrence Whitted, was fired from his job as a MetroAccess driver for a WMATA contractor, even though he had performed the job successfully for more than five years, based on a drug-related conviction from 1989, which he had disclosed when he initially applied for the job.

According to the Plaintiffs, WMATA’s policy violates federal and local anti discrimination laws, including Title VII of the Civil Rights Act of 1964, because it has resulted in the firing of many employees and disqualification of many qualified job applicants with a wide range of criminal convictions, with insufficient consideration whether the convictions occurred many years in the past or have any relationship to the job at hand.

The ruling, as explained by Seyfarth Shaw LLP, can be found here. The bottom line, is that the court granted in part “Plaintiffs’ motion for class certification and certified three classes under Rule 23(b)(2) and Rule 23(c)(4) with respect to liability and the availability of injunctive relief.”

There is a lesson here for employers. The ruling puts employers on notice that even if the majority of your workforce is part of a protected class, an employer’s hiring policies can still be considered to have a disparate impact on that class for purposes of Rule 23 class certification. Therefore, it’s important to ensure that your hiring policies are neutrally applied and reviewed with counsel.

 Little et al., v. Washington Metropolitan Area Transit Authority et al.

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