According to Reuters, a class action suit was filed last week against Amazon because the company allegedly fired a disproportionate number of black and Latino drivers based on background checks that the company performed. Amazon claims that it performs its background checks on all drivers, and any disparity against black and Latino drivers is inadvertent.
Even conducting background checks in a race-neutral way could pose a problem for Amazon, however. If a certain policy has a “disparate impact” on a particular group, i.e. it negatively affects one group more than another, this might still violate the law. If a plaintiff can show that an employer’s policy has a disparate impact on one group, then the employer must prove that the policy is related to the job that the person possesses and is necessary for that job. So, a background check policy that fires a disproportionate number of black and Latino drivers for things that have nothing to do with driving, like drug possession for instance, could impose an illegal disparate impact.
The lawsuit against Amazon claims that the company has disregarded this and fired employees for minor offenses in their background that had no relation to their jobs. This is not the first time that Amazon has gotten into trouble for its background check policy. In July Amazon agreed to give $5 million worth of its gift cards to more than 450,000 job applicants to settle a lawsuit claiming that its background checks violated the Fair Credit Reporting Act, which requires a notification that a background check will be conducted.
Conducting background checks on employees or job applicants is a dicey thing to do. In addition to putting employers at risk of creating an illegal disparate impact and violating the Fair Credit Reporting Act, background checks done the wrong way could violate other laws restricting or limiting the use of background checks. One of these is the Job Opportunities for Qualified Applicants Act, an Illinois law that prohibits private employers from considering or requiring the disclosure of an applicant’s criminal history until it has been determined that the applicant is qualified for the position and the applicant has been selected for an interview. There has also been some momentum to pass a federal law that imposes similar requirements on the federal government when hiring employees.
Before you put a background check policy in place you should run it by an attorney to make sure that it does not violate any of the myriad number of laws affecting how background checks must be performed and used. Feel free to contact us for help doing this.