Both federal law and New Jersey law generally bar disparate impact discrimination, which occurs when an employer’s action has a disproportionately harmful effect on people of a protected class. These actions may often target employer standards, practices, or rules that seem to be neutral but, in function, end up disparately harming people like women, Black workers, Latinos, older workers, etc. If you’ve encountered an employment practice like that and suffered harm as a result, then you may have a viable discrimination case, and you should contact a knowledgeable New Jersey employment discrimination lawyer to find out more.
J.R. and E.J. allegedly were two of those people harmed as a result of racially discriminatory hiring. J.R. was both Black and Latina and applied for employment with Walmart in 2020. Prior to applying, the New Jersey woman had completed an internship with a Walmart subsidiary in Hoboken, according to her complaint. Allegedly, she did the same entry-level IT support work at the subsidiary that she would have performed with Walmart and was successful enough that her supervisor suggested that she apply to Walmart.
The woman’s interviews were successful and Walmart extended an offer of employment, only to rescind that offer just a few days later. The retraction was the result of content the employer found on the applicant’s criminal history. At some point earlier in J.R.’s life, she had been arrested. According to her complaint, she was “with friends who committed the crime in question,” and she pled guilty to a felony charge as part of a plea bargain because she feared “receiving a lengthy prison sentence” if she went to trial.
E.J. was a Black man from suburban Philadelphia who allegedly had three “old” felony drug convictions and one misdemeanor when he applied for an entry-level stocking position in 2020. Like J.R., he interviewed successfully and received an offer of employment, only for the employer to rescind that offer two weeks later, according to his complaint.
The applicants’ lawsuit contended that Walmart’s criminal background screening was overbroad, neglecting to consider whether the crimes involved “are job-related or create a business necessity for denial of employment” and whether or not mitigating factors were present (such as evidence of rehabilitation.) As a result, the retail giant’s method of screening had the impact of disproportionately screening out Black and Latino applicants, according to the complaint.
On those bases, the applicants filed class action claims alleging disparate impact discrimination in violation of both federal law (Title VII) and New Jersey law (Law Against Discrimination.)
Last month, the applicants scored an important success regarding the breadth of the class. Specifically, the employer sought to impose a two-year statute of limitations regarding one of the Pennsylvania law claims involved, while the applicants contended that a six-year limitations period should apply. The court ultimately decided in favor of the applicants.
New Jersey law says that workers bringing NJLAD claims generally must file those within two years from the date the alleged discrimination occurred.
Other Alleged Instances of Disparate Impact Discrimination in Background Checks
Walmart applicants are not the first to pursue relief based on employers’ discriminatory hiring rules regarding criminal histories. In 2019, a nonprofit dedicated to providing reentry aid to people with past convictions filed a Title VII and New York City Human Rights Law action against Macy’s in Manhattan. That lawsuit contended that the retail employer fired existing workers and rejected job applicants if they had criminal backgrounds, even if the crimes were long ago, minor charges, or unrelated to the work involved.
The two sides settled that lawsuit in 2020. The settlement required Macy’s to take multiple actions, including paying $1.8 million and taking further steps to ensure its compliance with New York City laws protecting employees and job applicants with criminal histories.
Additionally, Amazon has faced multiple lawsuits regarding its policies. One case filed in federal court in White Plains, N.Y., is ongoing. In 2018, Amazon settled a similar Title VII case, giving 450,000 applicants more than $5 million in Amazon gift cards.
Also in 2018, Target agreed to pay $3.7 million to settle its class action. That complaint, like J.R. and E.J.’s current case against Walmart, accused the store of violating Title VII by instituting criminal background checks and rules regarding criminal histories that disparately harmed Black and Latino applicants.
Whether the discrimination you encountered on the job was an instance of “disparate treatment,” which is also sometimes called “intentional discrimination,” or an example of disparate impact, the skilled New Jersey race discrimination attorneys at Phillips & Associates are ready to help you. Our team is experienced in handling — and winning — both disparate treatment and disparate impact discrimination matters. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.