Written By ESR News Blog Editor Thomas Ahearn
A Philadelphia resident who was fired from his job as a driver for Uber because of a criminal record from the 1980s that was found on a background check has filed a federal lawsuit that claims the transportation network company discriminated against him, according to a report on the Philly Mag website.
Philly Mag reports that Kendall Reese, who is now 52, began driving for Uber in 2017 after passing a background check. But in April 2018, after a CNN Investigation into crimes committed by Uber drivers against passengers, Uber increased due diligence which included reruns of driver background checks.
After Reese had his background check rerun in May 2018, Uber told him that his driving privileges were revoked due to the results of the background check, Philly Mag reports. He obtained a copy of the background check report and it showed two arrests – in 1985 and 1988 – that led to jail time.
Philly Mag reports that Reese appealed the decision but was told him he could not drive for Uber any longer. He obtained a right-to-sue letter from the U.S. Equal Employment Opportunity Commission (EEOC) and filed a federal lawsuit in August 2018 that claimed Uber had discriminated against him.
In April 2012, the EEOC – the federal agency enforcing laws prohibiting employment discrimination – approved ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ that impacted how employers hire in America.
The guidance clarified and updated the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, builds on court decisions and guidance documents that the EEOC issued over 20 years ago, and focuses on employment discrimination based on race and national origin.
The EEOC enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin. The EEOC Enforcement Guidance is part of the EEOC’s efforts to eliminate unlawful discrimination in employment screening, hiring, or retention.
An employer is liable for violating Title VII if its policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.
Unlawful “disparate impact” is established if an employer uses a practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the employer fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.
In cases involving a criminal record exclusion, the 1975 decision in Green v. Missouri Pacific Railroad held that it was discriminatory under Title VII for an employer to “follow the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense.”
The three “Green factors” relevant to assessing whether an exclusion is job related for the position in question and consistent with business necessity are the nature and gravity of the offense, the time passed since the offense or completion of the sentence, and the nature of the job held or sought.
In 2013, a group of national civil and workers’ rights organizations released a report entitled “Best Practice Standards: The Proper Use of Criminal Records in Hiring” that addressed the use of criminal records of job applicants by employers during background checks for employment purposes.
The Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute prepared the report. Attorney Lester Rosen, founder and chief executive officer (CEO) of Employment Screening Resources® (ESR), helped develop the best practice standards.
ESR also offers a white paper entitled “Practical Steps Employers Can Take to Comply with the EEOC Criminal Record Guidance” that gives examples real world examples and suggestions on what employers should do to remain in compliance with EEOC Guidance when performing criminal background checks.
NOTE: Employment Screening Resources® (ESR) reminds readers that allegations alone made in class action lawsuits are not proof that a business or person violated any law, rule, or regulation.
Uber Lawsuit Shows Need for EEOC Compliance
Employment Screening Resources® (ESR) – a leading global background check firm – offers a free proprietary EEOC Toolkit available only to ESR clients that is designed to support compliance with the EEOC guidance. To learn more, visit www.esrcheck.com/ESR-Solutions/EEOC-Toolkit/index.php.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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