Hunton Employment & Labor Perspectives

Uber Technologies, Inc. has been sued in a class action lawsuit alleging the company’s use of criminal background checks discriminates against Black and Latinx drivers. The complaint, filed in the U.S. District Court for the Southern District of New York on April 8, challenges Uber’s “unlawful use of criminal history to discriminate against its drivers in New York City as well as its brazen noncompliance with human rights and fair credit laws.”

Named plaintiff Job Golightly, a Black resident of Bronx County, New York, drove for Uber from 2014 through August 2020. Golightly claims that his criminal history consists of a single 2013 misdemeanor speeding violation from Virginia. According to the lawsuit, until 2017 Uber had relied solely on background checks conducted by the New York City Taxi and Limousine Commission (TLC). Plaintiffs allege that in mid-2017, in response to negative news coverage on assaults committed by drivers, Uber began using the credit reporting agency Checkr to conduct additional background checks on current and prospective drivers. As a result, in August 2020 Uber allegedly conducted a background check on Golightly that revealed his 2013 speeding violation. One day later, Golightly claims that Uber deactivated him from its platform, preventing him from driving for the company.

Dollar General and the Equal Employment Opportunity Commission (“EEOC”) recently settled a six-year-old Title VII lawsuit.  The EEOC brought its race discrimination claim on behalf of a Charging Party and a class of Black job applicants, alleging that Dollar General’s use of criminal justice history information in the hiring process had a disparate impact on Black applicants.

The United States District Court for the Western District of New York recently granted an early dismissal of a class action lawsuit prior to class certification.  Mandala v. NTT Data, Inc., 18-CV-6591 CJS, 2019 WL 3237361, at *1 (W.D.N.Y. July 18, 2019). The plaintiffs in Mandala were two African-American men who applied for and were offered jobs with the defendant employer.  After the employer conducted a criminal background check on the plaintiffs and found they each had a felony criminal conviction, the employer withdrew their job offers.  The plaintiffs filed a class action lawsuit against the employer alleging claims for disparate impact race discrimination under Title VII, and violations of New York state laws prohibiting criminal history discrimination and regulating the background check process.

A magistrate judge in the U.S. District Court for the District of Oregon recently made findings and recommendations to dismiss a purported class action against Kroger subsidiary Fred Meyer.  The suit alleges that the retailer’s background check process for prospective employees violates the Fair Credit Reporting Act by both failing to properly disclose that a report will be run, and failing to comply with the statute’s procedural requirements before taking adverse action against an applicant.

At the request of the U. S. Court of Appeals for the Second Circuit, the New York Court of Appeals recently answered several questions regarding liability under the New York Human Rights Law Section 296(15)—which prohibits denying employment on the basis of criminal convictions when doing so violates New York Correction Law Article 23-A—and Section 296(6)—which prohibits aiding and abetting such discrimination.

Illinois recently joined a growing number of states and municipalities that have passed “ban the box” laws regulating when employers can inquire into an applicant’s criminal history. 

On July 14, 2014, the Council of the District of Columbia (“D.C. Council”) unanimously voted to “ban the box,” approving a bill that will restrict when an employer may ask a job applicant about his criminal background.  The bill will now go to Mayor Vincent Gray for his signature, and then to Congress for approval.

In September, the Newark Municipal Council passed Ordinance 12-1630, which prohibits any employer with five or more employees from asking job candidates before or during the application process about their criminal history (i.e., the ordinance “bans the box” from an employment application).