NAACP Legal Defense Fund, Washington Lawyers’ Committee for Civil Rights, and Arnold & Porter LLP Challenge WMATA’s Unlawful Background Check Policy

Lawsuit Filed Today on Behalf of Well-Qualified Individuals Who Have Been Fired and Denied Jobs Because of Unlawfully Restrictive Screening Policy

(Washington, D.C.)—The NAACP Legal Defense and Educational Fund, Inc. (“LDF”), the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (“Washington Lawyers’ Committee”), and the law firm of Arnold & Porter LLP, today filed a class action lawsuit on behalf of nine named plaintiffs against the Washington Metro Area Transit Authority (“WMATA” or “Metro”) and three of its contractors challenging their use of an overly broad and unnecessarily punitive criminal background screening policy. The groups said the policy goes far beyond any legitimate public safety concerns to permanently stigmatize and bar from employment well-qualified workers, a disproportionate number of whom are African Americans.

Marcello Virgil with his youngest daughter Jayde.

“While criminal background information can be a legitimate tool for employers when screening job applicants, WMATA’s policy is unduly harsh, out of step with other jurisdictions, and limits opportunities for qualified African American employees,” said ReNika Moore, Director of the Economic Justice Group at the NAACP Legal Defense Fund.

According to the lawsuit, WMATA’s policy — in violation of Title VII of the Civil Rights Act and EEOC guidelines — has resulted in the firing of many employees and disqualification of many qualified job applicants with a wide range of criminal convictions without fairly or adequately considering how long ago the conviction occurred, or whether it is at all relevant to the job at issue. Under WMATA’s policy, for example, a vast number of criminal convictions—including many non-violent drug convictions—result in lifetime disqualification.  Today’s lawsuit argues that the policy violates federal and local antidiscrimination laws as well as guidance issued by the Equal Employment Opportunity Commission (“EEOC”).

“WMATA’s policy unfairly and disproportionately limits opportunities for qualified African American employees, who have been the most severely affected by the recent economic downturn,” said Matthew Handley of the Washington Lawyers’ Committee.  “Due to racial profiling and other discriminatory policies and practices in our criminal justice system, African Americans in the DC metro area are much more likely to be impacted by WMATA’s overlypunitive screening checks.”

Marcello Virgil visits the grave of his older sister, a military veteran.

For example, plaintiff Erick Little, 47, after taking and passing a written bus operator test and performing well in two interviews, was offered a job as a bus operator contingent on a criminal background check. At the time he received this offer, Mr. Little was employed as a bus operator for Montgomery County’s Ride On service. However, Mr. Little’s contingent offer was withdrawn because of a 27-year-old conviction that he disclosed during the interview process.

“I made a mistake when I was 19 years old,” said Mr. Little. “I learned from that mistake, changed my life, and am willing to work hard to provide for my family, but WMATA is telling me that because of my 27-year-old mistake I am a not qualified to drive a bus.”

This punitive criminal background check policy does not just apply to job applicants; employees of WMATA and its contractors have been fired as a result of WMATA’s background check policy, despite having previously disclosed their earlier convictions and performing their duties in exemplary fashion—often for years—without complaint from superiors.

A proud graduation day.

Plaintiff Marcello Virgil, 46, was fired from his job as a custodian with a WMATA contractor and denied an equivalent position with WMATA (which came with better pay and benefits) based on a 15-year-old drug-related conviction that he disclosed before starting work for the contractor.

“I had been a longstanding seasonal landscaper and custodian through a contractor for Metro. In fact, my supervisors encouraged me to apply for a full-time job directly with Metro. Yet, out of nowhere, I was told that I was going to be fired because of my 15-year-old conviction, even though I told them about that when I first applied to work there,” said Mr. Virgil. “I am joining this lawsuit today because I don’t think it’s fair that a mistake I made 15 years ago should keep me from supporting myself and my family.”

A loving family portrait

In a letter recommending Mr. Virgil for a position with WMATA, his supervisor described him as “a valuable employee who highly valued attendance and punctuality,” noting that “his work ethic raised the level of productivity of his colleagues.”

recent study by the Washington Lawyers’ Committee reported that African American residents accounted for more than 90% of all drug arrests, even though usage rates are roughly the same for blacks and whites.

“No one disputes that WMATA has the right to use criminal background checks. But their current policy is too rigid and unfairly bars people who have paid their debt to society. WMATA can and should adopt a background screening policy—as similar entities have done—that is fair and nondiscriminatory and that does not compromise public safety,” said John A. Freedman, of Arnold & Porter LLP.

Little et al. v. Washington Metro Area Transit Authority et al., was filed in U.S. District Court in the District of Columbia. The complaint and related material can be found online at www.washlaw.organd

LDF Media Highlights in Little v. WMATA Lawsuit: