Written By ESR News Blog Editor Thomas Ahearn
In October 2018, six black and Latino former drivers for Amazon filed a class action lawsuit in Suffolk Superior Court in Massachusetts that claimed the online retailing giant’s background check policy discriminated against them and allegedly caused them to be fired, according to a report from MassLive.com.
MassLive.com reports that the former drivers claim Amazon implemented an overly strict background check policy in 2016 which uncovered old and minor offenses and caused many drivers – who were disproportionately black and Latino – to be fired based on the results of those background checks.
MassLive.com reports that the class action lawsuit – which was originally filed as a complaint with the Massachusetts Commission Against Discrimination – “seeks to represent all Massachusetts black and Latino drivers who were terminated under Amazon’s background check policy.”
The lawsuit states that since Blacks and Latinos are arrested and convicted at higher rates than Whites, “Amazon’s policy and practice of terminating delivery drivers who are successfully performing their jobs, based solely on their background history, has a disparate impact on Black and Latino workers.”
MassLive.com reports that one of the lawyers representing the drivers in the class action lawsuit said in a statement that Amazon’s background check policy that led to the firing of the six drivers “is not only poor business practice, it also violates federal and state anti-discrimination laws.”
An Amazon spokesman said safety and customer trust is why background checks are required for drivers. “The background check process is focused on job related criminal and motor vehicle convictions and does not consider race, gender, ethnicity, religion or other protected characteristics,” MassLive.com reports.
On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) – which enforces 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.’
The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which makes it illegal to discriminate against a person on the basis of race, color, religion, sex, or national origin. The Enforcement Guidance is part of the EEOC’s efforts to eliminate unlawful discrimination in 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 decision in Green v. Missouri Pacific Railroad (1975) 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 complimentary white paper entitled “Practical Steps Employers Can Take to Comply with the EEOC Criminal Record Guidance” that gives 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.
EEOC Toolkit from Leading Background Check Firm ESR
Employment Screening Resources® (ESR) is a leading global background check firm that offers an EEOC Toolkit to help employers develop compliant protocols that are applied consistently throughout the business. Learn more about the EEOC Compliance Toolkit at www.esrcheck.com/ESR-Solutions/EEOC-Toolkit/index.php.
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