Non-Profit Files Class Action Against Macy’s Over Policies Toward Job Applicants, Employees with Criminal Histories [UPDATE]

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A non-profit group that provides alternatives to incarceration and assistance to those formerly incarcerated has sued Macy’s over the retailer’s alleged policy of rejecting job applicants and terminating the employment of individuals with criminal histories. Alongside an individual plaintiff, The Fortune Society alleges Macy’s apparent policy applies “even when the applicants’ and employees’ convictions are old, minor, and/or unrelated to the positions at issue.” 

According to the suit, Macy’s stance on job applicants and employees with criminal histories reinforces racial discrimination rampant within the criminal justice system, disparately affecting Black and Latino individuals, and violates the Civil Rights Act of 1964, New York City Human Rights Law, and the Fair Credit Reporting Act (FCRA).

“Macy’s cannot justify its discriminatory criminal history screening policies and practices as job related or consistent with business necessity,” the suit states.

A sticking point in the case is Macy’s request that job applicants authorize a criminal background check before they’ve even been extended a conditional offer of employment. The plaintiffs argue this is legally impermissible in New York City, where the proposed class action was filed. Further, the case says that while Macy’s does contact job applicants and employees with regard to their criminal pasts, the retailer “fails to properly consider information about mitigating circumstances and evidence of rehabilitation,” i.e. an individual’s employment history that may include a successful employment stint with Macy’s itself. Macy’s also fails to consider, according to the suit, the amount of time that has passed since an individual’s conviction, as well as the nature of an offense in relation to the particular job being sought.

The Fortune Society claims in the lawsuit that Macy’s has impeded its mission to help individuals with criminal pasts, as a number of its participants have applied for positions at Macy’s, and have even been hired, only to have their job offers pulled back. With regard to the plaintiff, the lawsuit claims her conditional employment offer from Macy’s was terminated after a misdemeanor conviction was discovered on her background check. The case, citing the FCRA, claims the plaintiff was not provided a copy of the background report from which Macy’s got the information before adverse action was taken. 

Members of the proposed class defined in the complaint may include all individuals who, within the last five years, were subject to adverse action by Macy’s due in part to information within a background report without first being provided a copy of the report and a statement of their FCRA rights.