When discussing litigation related to background checks, employers often focus on the two most frequent lawsuit topics: the disclosure and authorization form and the adverse action process. However, employers must also be cognizant of other claims including the theory advanced by the Equal Employment Opportunity Commission (EEOC) that the use of criminal record information may lead to discrimination. A nationwide employer is now facing a battle after a lawsuit was filed in June 2019 alleging their use of criminal background report information led to racial discrimination.
According to the complaint, the employer allegedly committed several violations of various laws based on its use of criminal background checks.
What should employers do next? We recommend having hiring processes reviewed with qualified legal counsel. Any review should take into account the FCRA, but also any applicable state or local laws such as ban the box legislation.
According to the complaint, the employer allegedly committed several violations of various laws based on its use of criminal background checks.
Title VII of the Civil Rights Act and the New York City Human Rights Law (which incorporates Article 23-A of the NY state Correction Law and the NYC Fair Chance Act)
- Criminal history policies and practices have a disparate impact on black and Latino job applicants and employees with no tie to being job-related or consistent with business necessity (racial and/or national origin discrimination).
- Employment was denied based on convictions that do not have a direct relationship to the job and do not demonstrate an unreasonable risk to property or persons.
- For example, the plaintiff’s criminal background report returned a misdemeanor conviction for public nuisance stemming from a 10-year-old traffic-related incident. The plaintiff had applied to work in a call center.
NYC Fair Chance Act:
- Employer asked applicants in NYC to authorize a background check before extending a conditional offer of employment (a per se violation of that law).
Fair Credit Reporting Act:
- Employer failed to follow the adverse action process prior to terminating an individual based on the background check.
- Specifically, the complaint alleges the plaintiff went through several phone conversations with various representatives from the employer without ever receiving a copy of the background report.
- The conversations took place from October 23-October 29. On November 5, the plaintiff received a letter dated October 30 that rescinded the offer based on the background report. On December 8, the plaintiff received another letter informing her of her right to receive a copy of the report (the letter also attached a copy of the actual background report).
What should employers do next? We recommend having hiring processes reviewed with qualified legal counsel. Any review should take into account the FCRA, but also any applicable state or local laws such as ban the box legislation.