Dive Brief:

• Walmart's criminal history screening process is overly broad, in violation of Title VII of the Civil Rights Act of 1964, an applicant alleged in a proposed class-action lawsuit (Ramos v. Walmart, Inc., No. 21-cv-13827 (D.C.N.J., July 19, 2021)).
• The store fails to assess whether an applicant's convictions are job-related, the plaintiff said. Furthermore, Walmart's process does not take into account business necessity when it denies applicants employment based on their history, according to the complaint.
• Walmart's policy has resulted in "disproportionate screening out of Black and Latinx applicants," the plaintiff said.

Dive Insight:

When lawsuits center on criminal history screenings, they usually include charges that an employer has run afoul of the Fair Credit Reporting Act, a federal law designed to protect those who have information reported about them. Put simply, the law requires employers conducting a background check to notify the applicant or employee of the screening; obtain permission to do the screening; and discard the information received one year after it was produced or after the personnel action was carried out.

But Ramos serves as a good reminder that criminal history claims can involve more than the FCRA; in this case, the charges hinge on Title VII, the federal statute that outlaws employment discrimination based on race, sex and a number of other characteristics.

In addition to the plaintiff's individual circumstances, Ramos details statistics that support its claim that Walmart's criminal history policy has a disparate impact on Black and Latinx applicants. "The U.S. Census Bureau reports that although Black and Latinx individuals comprise only 29% of the U.S. population, they make up 57% of the U.S. prison population," the suit says. "This results in imprisonment rates for Black and Latinx individuals that are 5.9 and 3.1 times the rate for white adults, respectively."

In March, the 2nd U.S. Circuit Court of Appeals decided it would not reconsider claims that it said relied too heavily on national statistics as evidence that an employer's policy against hiring job seekers with select past criminal activity disparately impacted Black job seekers.

But the court outlined a way forward for such claims. "What's very interesting here is a baby step, but an important one," U.S. Equal Employment Opportunity Commission Acting Legal Counsel Carol Miaskoff said during a recent conference. "The majority and the dissent essentially lay out a road map." Though the court held that the plaintiffs failed to state a claim, it said they could have explained why the statistics were evidence of discrimination, or they could have pointed to other public statistics. 

"That's an important invitation, so to speak, and an issue to watch," Miaskoff said.