U.S. Census Bureau Down for the Count after Certification Ruling in Criminal Background Check Case

Last Tuesday, a Magistrate Judge in the United States District Court for the Southern District of New York granted partial class certification in a case where plaintiffs allege that the United States Census Bureau used arrest records to screen out job applicants, thereby transferring disparities in arrest and conviction rates for African-Americans and Latinos into the agency’s hiring practices and setting up hurdles to employment that disproportionately affected these groups in violation of Title VII.

U.S. Magistrate Judge Frank Maas certified a class of African-American job seekers who claim to have been adversely impacted by a “30-day letter” that gave applicants 30 days to provide official documentation on all arrests and convictions or by the criteria used to evaluate applicants who responded to that letter. More than 250,000 African-American and 200,000 Latino applicants received the challenged 30-day letter, and less than 1 percent of those people ended up getting hired, according to plaintiffs’ estimates. The U.S. Equal Employment Opportunity Commission warned the Census Bureau in 2009 that its criminal background screening process could violate federal law, the plaintiffs said.

The Magistrate Judge drew a distinction between the Census Bureau case and the claims at issue in the U.S. Supreme Court’s landmark Dukes v. Wal-Mart decision, noting that Dukes had raised the standard for plaintiffs alleging that subjective decision-making was discriminatory: “What distinguishes this case from Dukes… is the fact that the Census Bureau, unlike Wal-Mart, employed uniform, non-discretionary hiring instruments — the 30-day Letter and the Adjudication Criteria — to exclude applicants from the hiring pool,” Tuesday’s ruling said.

Magistrate Judge Maas also partially granted the Census Bureau’s motion to dismiss, and dismissed three named plaintiffs for lack of standing, but stated that the plaintiffs could seek to amend their complaint and the class certification order if they could find a suitable Latino class representative. The class was certified for determining liability and injunctive relief, but not damages.

This case is a reminder that employers should periodically examine their criminal background check policies to ensure that they continue to comply with developments in the law.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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