Recent surveys of human resource managers show that the vast majority of employers now rely on criminal background checks as part of their applicant screening process. While employers may consider a wide array of information when evaluating applicants, in some cases, employers can sometimes violate federal and state antidiscrimination laws if they consider an applicant’s criminal record. For example, an employer cannot reject an African-American applicant due to his criminal record but hire a white applicant with the same history. Similarly, an employer may not use a criminal records policy that disproportionately excludes a certain group of applicants, such as African Americans or other racial groups, unless it can show that the policy is closely related to the job at issue or justified from a business perspective.
The Washington Metropolitan Area Transit Authority (WMATA) is the largest regional transportation provider in the Washington, D.C. area. WMATA serves a population of five million people and operates the second largest rail transit system, the fifth largest paratransit service, and the sixth largest bus network in the United States. WMATA has over ten thousand direct employees; thousands more individuals work for companies that WMATA contracts with to provide services to its customers.
Beginning in 2009, WMATA has made made it much more difficult for applicants with criminal records to get or keep jobs at WMATA. Under WMATA’s current policy, a person who has been convicted of any felony – including non-violent drug offenses – or two or more misdemeanor offenses within the last ten years will be automatically disqualified for many positions. Also, WMATA decided to permanently disqualify from employment anyone who has been convicted of certain crimes, no matter how old the conviction is. WMATA has applied this policy not only to new applicants, but also to employees who already are working for WMATA (or one of its contractors) and who have not had any problems on the job.
While WMATA may lawfully consider some criminal history information, the recent changes to WMATA’s criminal records policy are far too restrictive and disqualify large groups of people from working at WMATA, even though they are qualified, and even though their past criminal history has no relationship to the job. For example, one African-American man was denied a job as a bus operator at WMATA because of a drug conviction charge that was decades-old. Another man was terminated from his job as a custodian with a WMATA contractor because of a drug conviction that was fifteen years old, even though he had been performing the job without incident and had even been recommended by his supervisors for a full-time position at WMATA.
The NAACP Legal Defense Fund (LDF) represents these and other individuals who have been unfairly denied employment opportunities with WMATA and its contractors because of their criminal backgrounds in administrative proceedings before the United States Equal Employment Opportunity Commission (EEOC). LDF’s challenge to WMATA’s criminal records policy are part of a broader effort to reform the ways criminal history information is used in the employment process, and to ensure that people are not being denied jobs because of a mistake they made in the past.