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Macy's Background Checks Unfairly Hit Minorities, Suit Says

Jun 27, 2019 / News Item / Law360 — Kevin Stawicki

Macy’s policy of firing recent hires over criminal convictions that come up in undisclosed background checks has an unlawfully disproportionate impact on minority workers, according to a proposed class action filed in Manhattan federal court.

The retail giant's screening policies have been used to deny jobs to countless black and Latino employees who are more likely to have criminal histories than their white counterparts due to discriminatory policies in the criminal justice system, according to the lawsuit filed Wednesday by The Fortune Society and the NAACP Legal Defense and Educational Fund Inc.

In addition to violating Title VII of the Civil Rights Act due to the policies’ impact on people like Jenetta Rolfer, a plaintiff in the suit, Macy’s Inc. is also violating the Fair Credit Reporting Act by failing to notify the candidates that their criminal records have been used to deny them employment without regard to the nature of the offense found in those reports, the suit said.  

“Any legitimate business necessity that Macy’s might claim for a criminal background check screening process cannot be justified by the unduly harsh and arbitrary system Macy’s has chosen to implement,” the lawsuit said. “Instead, any such business necessity can be addressed by less discriminatory alternatives, such as a validated screening policy that provides an individualized assessment of each job applicant or employee in accordance with Title VII.”

Rolfer, who’s black, says that shortly after Macy’s hired her as a customer service representative, it swiftly fired her based on a background check from a consumer reporting agency that showed her misdemeanor conviction for public nuisance related to a 10-year-old traffic-related incident.

A Macy’s representative pulled Rolfer out of orientation in 2018 to ask her about the conviction from the background report without providing her a copy, Rolfer says. While Rolfer attempted to explain that the conviction was because she failed to provide proof of insurance during a traffic stop because she couldn’t afford the insurance premiums, she said her employment was terminated just days later.

In addition to violating Title VII and the FCRA, Macy's policies, according to the lawsuit, violate the New York City Human Rights Law, which bans arbitrary hiring based on criminal convictions and is meant to help people with criminal histories re-enter society.

The lawsuit seeks to certify a class of individuals who were allegedly denied employment from Macy’s across its more than 800 stories throughout the country based on consumer reports that Macy's never provided, in violation of the FCRA.

Rolfer filed a discrimination charge against Macy’s with the U.S. Equal Employment Opportunity Commission in 2019, alleging the store’s policies adversely affect minority applicants. That charge is still pending.

In addition to harming individuals like Rolfer, The Fortune Society said Macy’s practices also harm the nonprofit’s ability to help many of its participants “undermined” by Macy’s discriminatory practices. The Fortune Society filed its own discrimination charge with the EEOC in 2017.

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The proposed class is represented by Ossai Miazad, Lewis Steel and Cheryl-Lyn Bentley of Outten & Golden LLP; Rachel Kleinman of the NAACP Legal Defense and Educational Fund Inc.; and Michael Pope, Eric Eingold and Dale Ventura of Youth Represent.

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The case is The Fortune Society Inc. et al. v. Macy’s Inc., case number 1:19-cv-05961, in the U.S. District Court for the Southern District of New York.

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