NAACP Sues Employers for Posting Ads Barring Applicants With Criminal Records

Bloomberg BNA-Daily Labor Report—John Herzfeld

Reproduced with permission from Daily Labor Report, 122 DLR A-2, (June 25, 2015). Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com/

Employers that use popular job search sites to post listings barring applicants with criminal records violate the New York City Human Rights Law and the state Correction Law, a lawsuit by an arm of the NAACP charged June 25 (NAACP N.Y. State Conference Metro. Council of Branches v. Philips Elecs. N. Am. Corp., N.Y. Sup. Ct., No. 156382/2015, complaint filed 6/25/15).

In a complaint filed in the Supreme Court for New York County, the National Association for the Advancement of Colored People’s New York State Conference Metropolitan Council of Branches seeks certification of a defendant class of more than 100 companies that the plaintiffs say post want ads on Monster Worldwide Inc., Ziprecruiter Inc. and Indeed Inc., specifying that people arrested or convicted aren’t eligible to apply.

The lawsuit names as defendants Philips Electronics North America Corp., NTT Data Inc., Recall Total Information Management Inc. and Advance Tech Pest Control.

Exhibits to the complaint showed posted want ads from the companies ruling out applicants with arrest records, felony convictions or driving while intoxicated or other auto-related offenses.

The number of companies that post such ads with the job search sites, named as John Does in the case, is ‘‘in the hundreds, conservatively,’’ and may number in the thousands, said Ossai Miazad, a lawyer with Outten & Golden LLP in New York.

Outten & Golden is handling the case along with the Lawyers’ Committee for Civil Rights Under Law in Washington and NAACP lawyer James I. Meyerson in New York.

The named plaintiffs ‘‘exemplify the wide range of companies engaged in this illegal practice’’ and include large employers in the technology and information management industry as well as smaller employers, the plaintiffs said.

Plaintiffs Seek Injunction.

The lawsuit seeks joinder of the three job search site companies to require them to produce information necessary to identify the potential members of a defendant class, Miazad said at a New York news conference held on the steps of City Hall.

‘‘They have exclusive control of the listings,’’ she said.

Although the sites aren’t legally liable for the charged discrimination, ‘‘they are responsible for creating a platform for the ads,’’ Miazad said. They are also needed to provide that an injunction in the case would be ‘‘effective and enforced,’’ she said.

Before moving for class certification, the plaintiffs will seek a preliminary injunction barring criminalrecord prohibitions in the ads, which would require the job search sites to take action to cease posting them, she told Bloomberg BNA.

Miazad called the lawsuit ‘‘the first of its kind’’ for seeking to block the want ads and certify a defendant class of employers violating the legal prohibition.

Under the city Human Rights Law (NYC Admin. Code § 8-101) and Section 23-A of the New York Correction Law, blanket bans on hiring because of a felony conviction are illegal and violate ‘‘clearly articulated’’ city policy, the complaint says.

Racial Component Seen.

People of color in New York have felony convictions disproportionate to their numbers in the overall population, ‘‘and the racial statistics of persons presently in the criminal justice system indicate that this pattern will continue in the immediate future,’’ the lawsuit says.

Although blacks make up only 16 percent of the state’s population, they accounted for some 53 percent of its incarcerated population in 2013, the plaintiffs said. Nearly half of the state’s inmates are from New York City, they said. ‘

‘We are fortunate to live in a state that has banned discriminatory ‘ex-offenders need not apply’ postings, but we are gravely concerned that so many employers, with the help of sites like Monster, Indeed, and ZipRecruiter, repeatedly violate this law,’’ Ken D. Cohen, director of the NAACP NY Metropolitan Council, said in a statement.

‘‘This lawsuit will force them to cease this illegal behavior to the benefit of our communities, our economy, and society as a whole.’’

In prepared remarks, Miazad said: ‘‘The public policy of New York state and city is to encourage the employment of those previously convicted of criminal offenses.’’ City and state law, she said, ‘‘plainly prohibit blanket bans on ex-offender applicants without considering other factors.’’

In another statement, Ray P. McClain, director of the Lawyers’ Committee’s Employment Discrimination Project, said that, in the U.S, ‘‘up to 30 percent of African-American men of working age have felony convictions, so barriers that exclude these men from getting jobs contribute substantially to the disproportionately high unemployment rates for workers of color.’’

A spokeswoman for Recall, in an e-mailed statement, said the company ‘‘is committed to fair and equitable recruitment and employment practices.’’ Officials are ‘‘reviewing the details related to the case’’ and will respond to authorities accordingly, she said.

Representatives of Philips and Indeed declined to comment on a case in litigation. Other companies named in the complaint didn’t respond to requests for comment.