A criminal conviction can have long-lasting effects on a person’s life, even after they have completed their sentence. Many employers refuse to hire applicants with felony records, and sometimes even having a record of an arrest can work against a person. Numerous states, including New Jersey, have enacted laws that restrict the use of criminal history in hiring to various degrees. The goal is to help people restart their lives once they have “repaid their debt to society,” as the saying goes. New Jersey employment laws bar employers from asking about criminal history in the early stages of the hiring process. They are not the only safeguard for job seekers looking for a fresh start. The use of criminal history in hiring can lead to discrimination on the basis of race. A putative class action filed this summer in a New Jersey federal court makes this allegation against a national retail chain.
Laws that restrict employer inquiries about criminal history are informally known as “ban the box” laws, in reference to the checkbox on many job applications asking whether an applicant has a criminal record. New Jersey’s law does not go as far as other laws. It bars employers from asking applicants about criminal history during the “initial employment application process.” After that, employers may ask, and the law does not restrict how they may use the information they obtain. Laws in some other jurisdictions prohibit employers from discriminating against job applicants on the basis of criminal history, with exceptions when an applicant’s history is directly relevant to the job they are seeking.
Laws like Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination on the basis of race. This includes both overt discrimination that treats members of one race differently from others, and “disparate impact” discrimination, in which a seemingly neutral policy or practice has a disproportionately negative effect on members of one race. A plaintiff claiming disparate impact discrimination does not need to prove that the employer intended to discriminate. They only need to show that the policy or practice was not reasonably necessary for the employer’s business operations, and that it negatively affected one race more than others.
The two lead plaintiffs in the New Jersey lawsuit applied for jobs with the defendant and quickly received job offers. After a third-party contractor completed background checks, however, the defendant rescinded their offers because of their criminal history. The plaintiffs are a Black man and a Black and Latinx woman. They state in their complaint that they are qualified for the positions they were seeking and that their criminal history is not relevant to those positions.
The defendant’s screening process for applicants, the plaintiffs allege, “perpetuates the gross racial disparities in the criminal justice system into [the defendant’s] applicant pool.” They further argue that the defendant’s adverse actions based on their criminal history were “discriminatory, not job related, and inconsistent with business necessity.” The lawsuit seeks to certify a class of people with similar experiences. It asserts causes of action for disparate impact discrimination under Title VII and the NJLAD.
The Resnick Law Group’s employment lawyers represent employees and job applicants in New Jersey and New York, advocating for their rights in claims under state and federal law. To schedule a confidential consultation to see how we can help you with your case, please contact us today online, at 973-781-1204, or at 646-867-7997.