In response to the lawsuit, Macy's Chief Diversity Officer Shawn Outler sent ClassAction.org the follow statement via email:
"As a matter of company policy, we do not comment on pending litigation.
Macy’s, Inc. is committed to an inclusive work culture that supports our company’s core values – Acceptance, Integrity, Respect and Giving Back. We believe we are strongest when all aspects of our business reflect the diversity of the customers and communities we serve. Company-wide, approximately 60% of our colleagues are ethnic minorities and approximately 75% are women.
We are committed to ensuring the safety and security of our colleagues and customers, securing proprietary business information, and safeguarding confidential customer, colleague and company data. All Macy’s, Inc. senior executives, Credit and Customer Service (MCCS), asset protection and fine jewelry colleagues, as well as certain support 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."
A non-profit group that provides alternatives to incarceration and assistance to those formerly incarcerated has sued Macy’s over the retailer’s alleged policy of rejecting job applicants and terminating the employment of individuals with criminal histories. Alongside an individual plaintiff, The Fortune Society alleges Macy’s apparent policy applies “even when the applicants’ and employees’ convictions are old, minor, and/or unrelated to the positions at issue.”
According to the suit, Macy’s stance on job applicants and employees with criminal histories reinforces racial discrimination rampant within the criminal justice system, disparately affecting Black and Latino individuals, and violates the Civil Rights Act of 1964, New York City Human Rights Law, and the Fair Credit Reporting Act (FCRA).
“Macy’s cannot justify its discriminatory criminal history screening policies and practices as job related or consistent with business necessity,” the suit states.
A sticking point in the case is Macy’s request that job applicants authorize a criminal background check before they’ve even been extended a conditional offer of employment. The plaintiffs argue this is legally impermissible in New York City, where the proposed class action was filed. Further, the case says that while Macy’s does contact job applicants and employees with regard to their criminal pasts, the retailer “fails to properly consider information about mitigating circumstances and evidence of rehabilitation,” i.e. an individual’s employment history that may include a successful employment stint with Macy’s itself. Macy’s also fails to consider, according to the suit, the amount of time that has passed since an individual’s conviction, as well as the nature of an offense in relation to the particular job being sought.
The Fortune Society claims in the lawsuit that Macy’s has impeded its mission to help individuals with criminal pasts, as a number of its participants have applied for positions at Macy’s, and have even been hired, only to have their job offers pulled back. With regard to the plaintiff, the lawsuit claims her conditional employment offer from Macy’s was terminated after a misdemeanor conviction was discovered on her background check. The case, citing the FCRA, claims the plaintiff was not provided a copy of the background report from which Macy’s got the information before adverse action was taken.
Members of the proposed class defined in the complaint may include all individuals who, within the last five years, were subject to adverse action by Macy’s due in part to information within a background report without first being provided a copy of the report and a statement of their FCRA rights.