Photo by Mike Strand
The NAACP Legal Defense and Educational Fund, Inc. (LDF), the law firm of Outten & Golden LLP (O&G), and Youth Represent (YR) filed a lawsuit this week in the Southern District of New York against Macy’s, Inc. (Macy’s), challenging its use of an unnecessarily punitive criminal history screening policy. According to the lawsuit, the policy disproportionately disqualifies Black and Latinx applicants and employees from job opportunities in violation of Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law.
Plaintiffs, The Fortune Society, Inc. (Fortune) and Jenetta Rolfer, seek to change a screening policy that they allege results in a disproportionate number of otherwise qualified Black and Latinx job applicants and employees being denied employment or terminated due to their criminal background histories, including for minor or very old convictions that are unrelated to the positions at issue.
Fortune, a non-profit community-based organization that supports successful community reentry, including job-training and placement services, alleges that hiring practices at Macy’s affect its participants who work at or apply for jobs and are rejected or terminated because of the company’s policy.
JoAnne Page, president and CEO of The Fortune Society, said, “Collateral consequences from convictions, such as discriminatory hiring policies, serve only to further punish and marginalize already vulnerable communities. Most people we serve at The Fortune Society are in fragile housing, financial, physical, or emotional circumstances. People need real opportunities to help reclaim their life, not more obstacles.” Page added, “All applicants deserve to be evaluated based on the qualifications necessary to perform the job, independent of any justice history. Given a fair opportunity to succeed, people with justice system involvement would add significant value to the workforce at Macy’s.”
“The criminal history screening policy at Macy’s denies jobs to many qualified applicants and employees. Overly restrictive and punitive criminal history screening policies can disproportionately impact Black and Latinx workers, due to racial discrimination in the criminal justice system,” said Sherrilyn Ifill, president and director-counsel at LDF. “Macy’s must amend its discriminatory criminal history screening policy and create more economic opportunities for deserving Americans.”
Rolfer was hired to work at a Macy’s Credit Granting Department, but was abruptly terminated by the company for a misdemeanor conviction stemming from a decade-old traffic related incident. Reflecting on her experience, Rolfer said, “I was excited to work for Macy’s. I was qualified and had the experience to do the job well and it was a great opportunity for me and my family. I was devastated to be fired over information in my background check that is unrelated to my ability to be a productive employee.”
Rolfer alleges that Macy’s has violated the Fair Credit Reporting Act by rejecting applicants or terminating employees based on information contained in criminal background reports without providing individuals with a copy of their report, a notice of their rights, or a timely notification of its intent to take an adverse employment action..
LDF, O&G, and YR also represent former Macy’s applicants and employees who are barred from joining the lawsuit because of a mandatory arbitration provision that the company required them to sign. Mandatory arbitration provisions forbid employees from going to court to enforce their rights, requiring them instead to bring their disputes before private arbitrators in non-public proceedings.
“We have seen many advances in the law to assist with the successful community reintegration of individuals with criminal histories,” said Cheryl-Lyn Bentley, an attorney at Outten & Golden. “However pernicious hiring practices screening out applicants and employees based solely on their criminal histories set us all back and are antithetical to principles of fairness and justice.”
“Denying employment for qualified candidates leaves people unable to support themselves and their families,” said Michael Pope, interim executive director at Youth Represent, “and further perpetuates racial discrimination in our criminal justice system.” Mr. Pope added, “Not to mention, Macy’s is losing out on an incredible pool of qualified, passionate, and dedicated employees.”
As a matter of company policy, Macy’s Inc. does not comment on pending litigation, according to Shawn Outler, chief diversity officer for the Macy’s.
However, Outler said Macy’s, Inc. is committed to an inclusive work culture that supports our company’s core values – Acceptance, Integrity, Respect and Giving Back.
“We believe we are strongest when all aspects of our business reflect the diversity of the customers and communities we serve,” he said. “Company-wide, approximately 60% of our colleagues are ethnic minorities and approximately 75% are women. We are committed to ensuring the safety and security of our colleagues and customers, securing proprietary business information, and safeguarding confidential customer, colleague and company data. All Macy’s, Inc. senior executives, Credit and Customer Service (MCCS), asset protection and fine jewelry colleagues, as well as certain support roles, are required to complete third-party background screening. For all other job functions, we are consistent in our approach to the consideration of criminal history in adherence with EEOC guidelines, as well as applicable local and state laws, and consider, among other things, the requirements of the job, the amount of time that has elapsed, and the nature of any offenses.”