Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Employers that use criminal record screening policies must continue to be vigilant about compliance with all applicable laws. A recent settlement by one of the nation’s leading retailers, Target, reinforces this point. The company has settled a threatened nationwide class action lawsuit arising under Title VII of the Civil Rights Act of 1964 for $3.74 million dollars and other programmatic relief.
The plaintiffs alleged that Target's criminal-record-screening policies had a disparate impact on African-American and Latino job applicants for store positions. The claim centered on the standards for assessing ex-offender job applicants as eligible or ineligible for employment. No court ruled against Target, nor has the company admitted any liability.
Over a period of several years, the parties negotiated a pre-litigation class-wide settlement that, under the Federal Rules of Civil Procedure, must be approved by a federal court. On April 5, 2018, the plaintiffs’ attorneys submitted the proposed settlement to a federal court in New York for approval. The settlement requires programmatic relief in addition to a monetary payment. Specifically, the retailer has agreed to retain two experts in the field of industrial and organizational psychology to design, develop, and implement properly validated adjudication guidelines for the hiring of job applicants with criminal histories for hourly, nonexempt jobs at Target stores.
Overall, the subject of background checks, including criminal record screening policies, is thorny and continues to garner attention from legislatures,1 the Equal Employment Opportunity Commission (EEOC),2 and the plaintiffs’ bar. It is prudent for all employers, and particularly multi-state employers, to take measures to help ensure they comply with all applicable laws, including the so-called ban-the-box laws and the Fair Credit Reporting Act (FCRA). The FCRA especially has become one of the mainstays of the plaintiffs’ class action bar.3
1 See Rod M. Fliegel and Molly Shah, Ringing in 2018 with New Ban-The-Box Laws, Littler Insight (Jan. 8, 2018); Rod M. Fliegel and Allen P. Lohse, San Francisco is Likely to Amend its Ban-the-Box Law, Littler ASAP (Mar. 29, 2018); William J. Simmons, Uzo N. Nwonwu, and Jason N.W. Plowman, Kansas City, Missouri, Enacts "Ban-the-Box-Plus" Ordinance, Littler ASAP (Feb. 6, 2018).
2 See Rod M. Fliegel, Barry Hartstein, and Jennifer Mora, EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers, Littler Insight (Apr. 30, 2012); Rod M. Fliegel and Allen Lohse, The EEOC Continues to Press Litigation Under Title VII Concerning Employer Criminal Records Checks, Littler Insight (Dec. 21, 2017); Rod M. Fliegel, Jennifer L. Mora and Allen Lohse, EEOC's Race Discrimination Suit Against Janitorial Company Includes Background Check Allegations, Littler ASAP (July 14, 2017). See also Rod M. Fliegel and Molly Shah, EEOC's Background Check Guidance Suffers Loss in Texas Federal Court, Littler Insight (Feb. 5, 2018).
3 See Rod M. Fliegel, Alison Hightower, and Allen Lohse, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions, Littler Insight (Oct. 19, 2017).