Target Settles Background Check Suit For Nearly $3.75M

Law360—Braden Campbell
04.05.2018

Target will give hiring preference to some of the more than 41,000 black and Latino applicants it previously denied jobs to because of their criminal histories and will pay nearly $3.75 million as part of a deal ending a proposed class suit challenging its background check policy, according to a document filed Thursday in New York federal court.

Named plaintiffs Carnella Times and Erving Smith moved the Southern District of New York on Thursday to approve the deal, which also requires Target to hire consultants to overhaul its background check system and give $600,000 to nonprofits that help the formerly incarcerated find work. The workers also filed their suit Thursday, though the dispute dates back more than a decade, they say.

Among other things, the workers said said the court should approve the settlement because it’s “comprehensive.”

“It provides a process for remedying Target’s allegedly flawed hiring policies; it affords class members opportunities to obtain jobs or compensation; and it funds a [process] that will help nonprofit organizations engaged in re-entry work,” the workers said.

Times and Smith, along with the nonprofit Fortune Society Inc., which helps the formerly incarcerated find jobs, say Target’s background check policy violates Title VII of the Civil Rights Act because it disproportionately hurts black and Latino workers without helping the company’s business.

Per the motion, Target doesn’t hire applicants who have been convicted of certain misdemeanor or felony crimes involving “violence, theft, or controlled substances” in the seven years prior to their applying for jobs. It also disqualifies applicants it believes inaccurately described their criminal convictions, the workers say. This policy is illegal because it “imports the racial and ethnic disparities that exist in the criminal justice system into the employment process,” compounding these negative impacts on black and Latino applicants, the workers said.

Under the agreement, Target will offer openings to the estimated 41,000 class members before other applicants, and it will waive its initial screening interview for workers qualified for supervisory jobs. If there are no hourly jobs available within 20 miles of a class member, they will be offered the first job that becomes available for 12 months after the court approves the settlement. Applicants whose criminal histories disqualify them under the revised hiring criteria or other reasons will not be paid.

Class members who are not hired for certain other reasons, including already having jobs, being retired or having a disability, will be paid a portion of a $1.2 million cash pool, with individual awards capped at $1,000.

The workers’ attorneys, Outten & Golden LLP and the NAACP Legal Defense and Educational Fund, will ask for as much as $1.9 million in costs and fees, they say. Times and the Fortune Society will be paid $20,000 each, and Smith will be paid $2,500.

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Cheryl-Lyn Bentley, one of the attorneys from Outten & Golden, told Law360 she hopes other large companies follow the precedent Target has set with this deal.

“We really think it’s important to give people an opportunity,” Bentley said. “Whatever their involvement with the justice system has been, they deserve an opportunity to work and provide for themselves and their families.”

Target said Thursday it's “glad to resolve this and move forward.” The company noted it has stopped asking job-seekers about their criminal histories on job applications, but does probe their backgrounds "in the final stages of the hiring process," and that it gives applicants a chance "to explain their criminal history." 

The workers are represented by Adam T. Klein, Ossai Miazad, Lewis SteelCheryl-Lyn Bentley and Christopher McNerney of Outten & Golden LLP, Sherrilyn Ifill, Coty Montag and Samuel Spital of the NAACP Legal Defense and Educational Fund Inc., and Lisa Levy and Giovanna Shay of Greater Hartford Legal Aid Inc.

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The case is Carnella Times et al. v. Target Corp., case number 1:18-cv-02993, in the U.S. District Court for the Southern District of New York.