As we previously have written, employer use of criminal records and background checks with respect to applicants and employees has been the subject of challenge on the grounds that such checks tend to discriminate against African-American, Hispanic, and male applicants. Indeed, on July 1, a federal court in New York certified a class of unsuccessful Hispanic and African-American applicants alleging the U.S. Census Bureau discriminated against them by requiring applicants to provide the Bureau with detailed information about their prior criminal records and improperly rejecting applicants on the basis of their prior criminal records. Houser v. Pritzker, Case No. 10cv3105-FM (S.D.N.Y. Jul. 1, 2014). Specifically, the plaintiffs are alleging that the Bureau's policies had a disparate impact on Hispanic and African-Americans because they tend to have higher arrest and conviction rates than whites.
However, as we also have mentioned previously, employers face challenges under the Fair Credit Reporting Act ("FCRA") with respect to how they actually use those background checks. In Antoine v. Aaron's Inc., Case No. 1:14-cv-02120 (N.D. Ga. filed Jul. 3, 2014), an unsuccessful applicant has filed a putative class action against Atlanta-based retailer Aaron's in Georgia federal court alleging that Aaron's violated the FCRA by rejecting applicants or terminating employees without providing them copies of background check reports prior to taking action. Specifically, the named plaintiff, Daniel Antoine, claims he was denied a sales position at an Aaron's Kansas City location based upon an erroneous report that he had a felony conviction, which was not disclosed to him until after his application was denied. The complaint also alleges that Aaron's does not provide pre-action copies of background reports to any of its applicants or employees at its 2,000 company-operated and franchised stores.
Antoine's lawsuit seeks to certify a class of all people who were subject to adverse employment actions by Aaron's on or after July 1, 2012 based in whole or in part on a consumer report procured by the company, without being provided with a copy of the report. According to the complaint, such a class likely will include hundreds or thousands of members. Antoine seeks statutory damages for the putative class (ranging between $100 and $1,000 per violation) for each of Aaron's alleged FCRA violations. The suit also asks the court to require Aaron's to give proper notice, and requests an award of attorneys' fees and costs.
Take-Away
Antoine, as well as Houser, serve as a reminder that employers need to review their policies and practices concerning background checks with employment counsel. It is important to look at both federal and state laws on this issue. Employers should make that they have lawful policies in place, use legally compliant forms, and consider only appropriate and current background information on applicants and employees.
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