“Why didn’t you tell us about the felony on your record?” the manager of a Target angrily asked Bryan Strong over the phone.
“I don’t have a felony on my record,” Strong replied.
That is the conversation that led to Strong being part of a class action lawsuit addressing discriminatory hiring practices. His situation illustrated the problem, although he was only a small part of the case.
The conversation was when Strong realized Target had dug really deep in its background check. It wasn’t the first time, and it wasn’t the last time, that Strong says corporations digging into his history have hurt his ability to get a job. This phone call occurred in the summer of 2016. Strong had been hired to work at the Target department store in Pleasant Prairie. But about two weeks after he was told he had been hired, the Racine native still had not been given a start date. He called the store, and that’s when the manager inaccurately accused him of being a felon and not disclosing it.
When Strong was 17, he was accused of trying to pass a counterfeit bill at the now-closed Pick ‘n Save on Rapids Drive across from Horlick High School. Using a counterfeit bill can be prosecuted as a felony, but all Strong had to do was pay a fine and the offense was expunged. Even though the case doesn’t remain on his publicly available online record, Target found out about that offense through its background checks.
“That’s got to be illegal,” Strong thought to himself after the Target manager hung up on him. But Strong found there wasn’t much he could do about it at the time.
According to Christopher McNerney, an associate in the national law firm Outten & Golden, “on the federal level, there are no protections that specifically say a private employer cannot deny someone based on criminal history.” However, if a company is going to deny someone a job, they cannot do it discriminatorily.
A multimillion-dollar civil case (Times v. Target Corp.) that McNerney started working on in 2018 alleged that Target was acting discriminatorily because it was filtering out so many applicants due to criminal background.
The basis for that argument was that, in the American legal system, people of color have been continuously prosecuted, investigated, tried and convicted at higher rates than the average. As such, the plaintiffs argued, Target’s screening process was overbroad and discriminatory since it was so consistently screening out people of color for jobs for which they were qualified.
According to the U.S. Bureau of Justice Statistics, Black adults are 5.9 times as likely to be incarcerated than whites, and Hispanics are 3.1 times more likely. The Sentencing Project, a criminal justice advocacy nonprofit based in Washington D.C., concluded that “African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences.”
When it comes to businesses, “you have to have a reasonable (background check) process,” McNerney said. “You can’t have overbroad screens … you can’t paint with too broad of a brush. You have to look at each specific person’s situation.”
In winter 2019, Target agreed to pay upwards of $3.7 million in the case and agreed to review its screening practices.
“Due to the bias and prejudice present in every level of the criminal justice system, Black and Latinx individuals are disproportionately likely to have an arrest or conviction record,” the NAACP Legal Defense and Educational Fund said in a statement about the case. “These disparities are then carried over into the employment realm, when companies implement overly broad criminal background screening policies. Under Target’s prior screening policy, a disproportionate number of otherwise-qualified Black and Latinx applicants were automatically disqualified from employment opportunities.”
The plaintiffs fought for that settlement not by showing Target was discriminatory toward people with a criminal record, but by showing Target’s broad screening out of people with smudges on their records was racially discriminatory toward people of color because people of color have been disproportionately and heavily prosecuted.
By having background checks that aren’t too strict, McNerney also pointed out that businesses would expand the pools of quality applicants. That’s one of the ways businesses can counter systemic racism, he said: “I think that’s one of the things we’re trying to address with these lawsuits: Showing that having a conviction in and of itself is a bar to employment (because) that’s not fair and that’s not right.”
“This is a very American concept, that we are more than just the worst thing we did.”
Strong, who is Black, said that the Black Lives Matter movement won’t make a difference unless this type of discrimination is ended.
Strong was part of Times v. Target. But he received just $156.86, according to a copy of the check he received. He could have made that money in a couple shifts had he been hired at Target, which is now paying a minimum of $15 per hour to its employees.
Now 34, Strong says he has run into similar issues with other corporations, which have stated directly that the decision not to hire Strong “was influenced in part by information contained in a consumer/investigative consumer report,” according to a copy of an employment rejection letter that Strong provide to The Journal Times. Although he’s talked about these problems in the past, there is rarely any recourse. Cases like Times v. Target are few and far between.
Most recently, Strong was working at Amazon after fighting to get a job in Kenosha, but he left in the early days of the COVID-19 pandemic; he is at higher risk of complications due to a respiratory problem. Once again, he finds himself out of work.
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