City Desk

WMATA Sued Over Strict Criminal Background Check Policy

The Washington Metropolitan Area Transit Authority's criminal background screening policies for employees unfairly discriminate against black workers, a class action suit filed today alleges.

The suit, filed by the NAACP Legal Defense and Educational Fund, the Washington Lawyers Committee for Civil Rights and Urban Affairs, and law firm Arnold & Porter, alleges that Metro and three of its contractors discriminated against job applicants and employees through an "overly broad and unnecessarily punitive" screening.

The policy, according to complaint, "goes far beyond any legitimate public safety concerns, to permanently stigmatize and bar from employment well-qualified individuals, a disproportionate number of whom are African-Americans."

The screening policy in question was implemented by WMATA in 2009. Before then, Metro disqualified applicants from jobs with direct contact with the public (station managers, for instance) if they had two felony convictions within three years or three felony convictions within 10 years. Misdemeanors were weighed on an individual basis, with weight given to how much time had passed since the conviction.

In August 2009, WMATA expanded the policy significantly: Now job candidates could be disqualified for, among other infractions, two misdemeanor convictions for drug possession in the past five years, or a conviction for a "crime of violence" regardless of when it took place. WMATA further broadened the policy in December 2011. The 2009 policy now applied to certain existing employees, including those applying for new positions or those who had been on non-work status, including medical leave, for 90 days or longer.

The 2011 policy also expanded to include employees in any position, whether it involved contact with the public or not (mechanics or janitors, for instance), and to employees with a felony conviction for drug dealing, regardless of when it took place. Under the new policy, current employees could be fired for criminal offenses even if they disclosed their history during their original screening and had had no new convictions.

Plaintiffs include nine residents of D.C. and its suburbs, all of whom are African-American and say they were denied employment, deterred from applying, or deterred from taking leave as a result of the background screening policy, which they say is in violation of Title VII of the Civil Rights Act. According to the complaint, one of the plaintiffs, Erick Little, was offered a job as a bus driver contingent on passing the criminal background check. Little, 47, had experience as a bus driver for Montgomery County's Ride-On system and as a commercial driver, but he had been convicted of drug possession in 1987, at age 19. He disclosed the conviction, for which he had served six months in a work release center, and a trio of misdemeanors on his record, for which he had received probation, during his interview with WMATA. After undergoing the background check, Little says, his offer was rescinded.

Another plaintiff, Marcello Virgil, 45, had worked for ESPI as a WMATA seasonal landscaper in 2011 and was rehired in 2012. According to the suit, he disclosed a 15-year-old drug-related felony conviction and passed the background check. It was only after he was offered full-time custodial work, a promotion that his supervisor had encouraged him to apply for, that he ran into trouble. In March 2013, Virgil underwent another criminal background check to renew his WMATA ID card. Less than a week later, he was fired. The other plaintiffs’ stories involve similar tales of decades-old convictions haunting them on their Metro applications.

The lawsuit maintains that the background check policy too harshly punishes job seekers or employees who committed crimes long ago, and that it discriminates against African-Americans, who are more likely to have criminal records—for instance, a recent study showed marijuana is used at equal rates by white and black people, but blacks are disproportionately punished for it. With more than 12,000 workers, including those contracted through a third party, WMATA is a major source of employment in the region, particularly for workers without formal higher education, but Metro’s policy as it stands disqualifies a large number of black residents of the area.

The suit isn't the first challenge to Metro’s criminal background checks. In March, WMATA fired bus driver Lescount Jackson after he returned from a year of medical leave for cancer treatments. After the union filed a grievance, he was reinstated. And in January, Ward 4 D.C. Councilmember Muriel Bowser proposed a resolution urging WMATA to revise its policies and make an effort to hire returning citizens. After a roundtable discussion on the issue in February, the Committee on Economic Development issued a report recommending the approval of Bowser’s resolution. WMATA declined to revise its policy.

Compared to other government and transportation organizations, Metro’s policy is fairly punitive. The D.C. government doesn't permanently bar applicants based on criminal convictions except in particular cases, including violent sexual criminal convictions. Local organizations including Arlington Transit and Ride-On in Montgomery County are more flexible in their screenings; the Chicago Transit Authority actively hires ex-felons for an apprentice program.

The suit calls on Metro and its contractors, Diamond Transportation, Executive Personnel Services, and First Transit, to “adopt a fair and nondiscriminatory background screening policy.”

WMATA wouldn't comment on the litigation but referred City Desk to WMATA General Manager Richard Sarles' testimony at Bowser's February hearing, in which he defended his agency's policy.

"The policy is clear and transparent and does not come with the uncertainty of a case-by-case approach," he said. "With the three categories, the existence of a criminal history is not an absolute bar from employment at WMATA. Instead, our policy recognizes that public facing customer service jobs should have a higher level of scrutiny and come with more stringent requirements than our internal non-public positions."

At the time, Sarles testified that Metro had not fired any of its employees due to a criminal conviction that occurred before they were hired.

Read the complaint here:

Additional reporting by Perry Stein

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