The retailer’s policies and practices “reinforce the racial discrimination present in the criminal justice system and result in unjustified racial disparities in employment opportunities,” it says.
The complaint alleges violations of civil rights laws barring disparate impact discrimination, which focuses on neutral employment policies that have a disproportionately negative effect on workers based on race or other protected characteristics. It also says Macy’s violated the Fair Credit Reporting Act’s protections against using criminal history information in consumer reports against applicants without their knowledge. Macy’s is one of the largest retailers in the U.S., with subsidiaries including Bloomingdale’s and Bluemercury.
In recent years, state and federal lawmakers and civil rights agencies have highlighted the impact of background checks in employment decisions, with some success.
“Ban-the-box” laws that bar employers from factoring criminal convictions into employment decisions have been enacted in 35 states and more than 150 cities and counties. In March, a federal bill that would prohibit federal agencies and contractors from asking job applicants about their criminal histories until later in the hiring process cleared a House committee.
The Equal Employment Opportunity Commission, which enforces federal anti-discrimination laws such as Title VII of the 1964 Civil Rights Act, issued controversial guidance on the issue during the Obama administration. The state of Texas challenged that guidance in 2013 and convinced a federal judge to block it. But the U.S. Court of Appeals for the Fifth Circuit is now considering whether the state is able to sue over the guidance.
The EEOC declined to comment on the Macy’s case but stated that the agency’s position is outlined in the updated guidance posted on its website.
The debated issue of criminal histories impacting employment chances also exposes a rift between the EEOC and the Justice Department, which both enforce Title VII. While the DOJ agrees that the case brought by Texas shouldn’t be heard, it disagrees with the EEOC’s stance that requesting criminal history screenings could impact an applicant’s shot at being hired.
Outten & Golden associate Cheryl-Lyn Bentley, who is part of a team of plaintiffs’ attorneys working on the Macy’s case, said workers from several states have already reported the alleged discrimination but that more from across the country could join.
“The people that have come to our firm have been people who have applied to Macy’s all over,” she said.
The lawsuit was filed by Fortune Society Inc., a nonprofit organization that provides alternatives to incarceration and reentry assistance to individuals impacted by the criminal justice system.
“We work really hard to help people get jobs, and Macy’s is an important employer,” Fortune Society President and CEO JoAnne Page said. “They are in an industry that is really full of potential.”
Page said they originally filed charges with the EEOC in 2017.
“When people are arrested even, but certainly when they get convicted for a crime, it’s like an albatross around their neck for the rest of their lives,” she said. “When we see an important employer who bars our folks from jobs that can give them a future, we always see if it’s possible for them to change their policies.”
Causes of Action: Title VII of the 1964 Civil Rights Act, New York City Human Rights Law, Fair Credit Reporting Act.
Relief: Injunction barring unlawful practices; class certification; statutory and punitive damages.
Potential Class Size: All job applicants and employees affected by the alleged practices at 800 stores nationwide.
Response: Macy’s declined to comment.
Attorneys: Outten & Golden LLP, NAACP Legal Defense & Educational Fund Inc., and Youth Represent filed the complaint.
The case is The Fortune Soc’y, Inc. v. Macy’s, Inc., S.D.N.Y., No. 19-5961, filed 6/26/19.