Employment Law Daily Race-based disparate impact challenge to criminal background check policy dismissed
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Tuesday, July 23, 2019

Race-based disparate impact challenge to criminal background check policy dismissed

By Lisa Milam, J.D.

Plaintiff-side powerhouse Outten & Golden and the NAACP Legal Defense Fund did not plausibly allege a statistically disparate impact on African-American job applicants.

African-American job applicants who challenged an employer’s criminal background check policy could not establish that it had a statistically disparate impact on black applicants, a federal district court in New York held, disposing of their proposed race discrimination class action suit on a motion to dismiss (Mandala v. NTT Data Inc., July 18, 2019, Siragusa, C.).

One of the named plaintiffs applied for a “salesforce developer” opening; the other plaintiff applied for the position of “web developer.” The company extended job offers to the plaintiffs. However, both have felony convictions on their records and, upon learning of their criminal backgrounds, the employer withdrew the offers. The plaintiffs asserted putative class action disparate impact discrimination claims under Title VII, alleging that the employer has a “‘policy and practice of denying job opportunities to individuals with certain criminal convictions including felonies (or similar criminal classifications)’” and that, because African Americans “interact with the criminal justice system at much higher rates than Whites,” this policy and practice has a disparate impact on African Americans in violation of Title VII.”

The plaintiffs cited statistics from the Department of Justice and other sources showing that African-Americans are disproportionately arrested and incarcerated at much higher rates than whites. But the employer argued that it was inappropriate to use general population statistics in this context to create an inference of disparate impact because the general populace was not representative of the relevant applicant pool. The complaint did not assert that the general population shared the qualifications that would make them potentially viable candidates for the positions that the plaintiffs were offered, and then denied. Nor did the complaint assert whether the statistics cited by the plaintiffs were reflective of misdemeanors or felonies, or both.

The plaintiffs attempted to support their use of general population statistics with reference to a sex discrimination case, but the analogy failed, as the court held that “general statistics are inadequate to show a relationship between the pool of applicants who are Caucasian versus African Americans and their respective rates of felony convictions.”

The rejected job applicants failed to allege facts showing that the company’s facially neutral policy and practice of not hiring convicted felons related to “the statistical disparity in the numbers of African-Americans arrested and convicted of crimes in proportion to their representative numbers in the pool of qualified applicants” for jobs with the defendant company, the court held. Therefore, it dismissed the plaintiffs’ Title VII race discrimination claims, and declined to exercise jurisdiction over their corresponding claims under New York law.

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