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Macy's discriminates against black and Latino job candidates by considering minor convictions, suit says

Jul 9, 2019 / News Item / NBC News — Elisha Fieldstadt

Macy's discriminates against black and Latino people by firing or refusing to hire people who have past criminal convictions, even if the violations were minor, old or wouldn't impede an employee's ability to do a job, a lawsuit filed Wednesday alleges.

The Fortune Society Inc., a nonprofit that helps people with criminal histories to find jobs and reintegrate in their communities, filed the suit in the Southern District of New York on behalf of Jenetta Rolfer on Wednesday.

Rolfer, who is black, alleges in the suit that she was offered a job in the credit and customer service department at Macy's in October 2018. She was experienced and qualified for the position, but was fired within the month after she was subjected to a background check.

The suit, which seeks class-action status, claims that while Rolfer wasn't immediately provided with the results of her background check, she tried to explain to her employer that the misdemeanor conviction that she believed had led to her termination was a decade old and the result of her not being able to provide proof of insurance during a traffic incident because she couldn't afford the premiums at the time.

She received a letter from Macy's formally rescinding her employment in November, and received a copy of her background check in December, the lawsuit said.

The Fortune Society says in the suit that Macy's often violates the rights of black and Latino people outlined by the U.S. Equal Employment Opportunity Commission and the New York City Human Rights Law, and that Rolfer's experience is just one example.

The EEOC and New York City law specify that employers may only consider criminal records if the conviction would hinder a potential employee's ability to do the specific job they are seeking, according to the suit.

Black and Latino people are disproportionately affected by the "overbroad and unduly rigid criminal history screening policies" at Macy's because those groups are more likely to be incarcerated than white people "because of racial profiling and other discriminatory policies and practices in the criminal justice system," according to the suit, which cites multiple reports and studies.

"Fortune’s mission is to support successful re-entry from incarceration and promote alternatives to incarceration for individuals currently involved with the criminal justice system." the lawsuit says. The retail giant's "employment policies and practices frustrate Fortune's mission and impact Fortune's resources."

Employers are also required under New York City human rights law to consider the time that has elapsed since an offense, the age of the person when the crime was committed and the seriousness of the charge. Macy's is violating the state law, the suit said.

"Despite knowing of its obligations under the NYCHRL, Macy’s has denied, and continues to deny, employment to job applicants and employees with very old, non-job related convictions and notwithstanding mitigating circumstances and evidence of rehabilitation," the lawsuit said.

Macy's is also ignoring guidelines in the Fair Credit Reporting Act, which is federal law, by failing to provide potential and fired employees with their background checks, thereby denying them the opportunity to explain the specifics of a conviction, the suit alleges.

In a statement, Shawn Outler, the chief diversity officer at Macy's, said company policy prohibits her from commenting on pending litigation, but she said applicants to certain roles "are required to complete third-party background screening."

"For all other job functions, we are consistent in our approach to the consideration of criminal history in adherence with EEOC guidelines, as well as applicable local and state laws, and consider, among other things, the requirements of the job, the amount of time that has elapsed, and the nature of any offenses," Outler said. She added that 60 percent of company employees are "ethnic minorities," and about 75 percent are women.

Rolfer said in a statement that she was "excited" to begin her job at Macy's, but "was devastated to be fired over information in my background check that is unrelated to my ability to be a productive employee.”

"All applicants deserve to be evaluated based on the qualifications necessary to perform the job, independent of any justice history," JoAnne Page, president and CEO of the Fortune Society, said. "Collateral consequences from convictions, such as discriminatory hiring policies, serve only to further punish and marginalize already vulnerable communities."

The Fortune Society is seeking equal opportunity for its participants to get jobs and promotions at Macy's, while Rolfer is seeking monetary and other relief for the violation of her rights, the suit said.

The law firms representing Rolfer also represent former Macy's employees and applicants who couldn't join the lawsuit because they signed contracts forbidding them from going to court over alleged rights violations, and instead require them to settle disputes internally in non-public mediations, according to the Fortune Society.

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