by Nick Fishman

A New York woman is suing Madison Square Garden, home of the NBA’s New York Knicks and the NHL’s New York Rangers, because she was denied employment based on the outcome of her background check.  The background check revealed a prior misdemeanor conviction for assault from five years ago and she alleges that she was discriminated against.

See article “New York Complaint Says ‘The Garden’ Discriminated in Background Check”

Her attorneys assert that since African-Americans are prosecuted and convicted at a much higher rate than whites, using criminal convictions found on a background check is discriminatory.  As a blanket statement, this is a ridiculous.  (To be fair, the attorneys are really saying that the practice of employment screening creates a disparate impact on minorities)  However, the Fair Credit Reporting Act permits employers to conduct background checks to determine suitability for employment.  If a person has been convicted of a crime that would call into question their ability to perform the job they are being hired for or if they represent a significant liability to the employer and, or their employees and customers, the employer has every right to deny employment.

Since I don’t know the specifics of the case, I can’t really argue the merits or lack thereof.  However, this will be a case worth following.  I do think that since the case is being brought in Federal Court on EEOC claims that they are looking for more than just a payday.

I would assume that the following will be important in determining the outcome:

• Does Madison Square Garden conduct background checks on all prospective employees in the same position that the applicant applied for?
• Has Madison Square Garden made similar hiring decisions when background checks have revealed similar convictions (including time, scope, repeat offenses, etc.)
• Have they ever hired another candidate with a similar record?
• Did the applicant grant consent to the background check and was she notified that her employment was predicated on the successful outcome of the check?
• Did the applicant dispute the findings? (It seems she did not.)

What can employers do to mitigate the opportunity for successful claims?

• Don’t discriminate in your hiring practices (that one seemed fairly obvious)
• Be consistent in your screening practices.
  • Develop guidelines for what background screening services should be conducted on candidates applying for each position
  • Make consistent decisions when Adverse Information is found
• Be careful with Adjudication Modules.  They can lead to EEOC issues.
• When making a decision not to hire based on the outcome of the background check, be aware of how the adverse information found would affect the job responsibility of the applicant
• Stay away from Social Networking Sites.  They too can lead to discrimination claims.

We’ll keep you posted.

This entry was posted on Tuesday, August 19th, 2008 at 10:36 am and is filed under Articles. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.