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Class Action Lawsuit Filed Against Metro Challenging Background Check Policy

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The NAACP Legal Defense Fund and others have filed a class action against Metro, saying its background-check policy violates the Civil Rights Act.
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The NAACP Legal Defense Fund and others have filed a class action against Metro, saying its background-check policy violates the Civil Rights Act.

Erick Little admits he has made mistakes. The worst one happened 27 years ago.

“It was the possession of drugs with the intent to distribute," Little says.

He was 19 years old. He pleaded guilty. Today, Little is 47 and has four children. He's an employee for the Montgomery County government, where he drove the Ride On buses. He figured applying for a job as a Metro bus driver made perfect sense.

“It’s the same job just a different uniform,” he said.

It may be the same job, but Metro employs a different employee screening system, and it flagged Little’s long-ago drug offense. His application was rejected.

“My background check from Montgomery County Maryland is a seven-year background check, versus Metro that has permanent disqualifiers in place,” Little said. “It is just never giving you a chance to redeem yourself. When I was 19, I had no direction or understanding of what life really meant then.”

Mistakes that stick

Little is now a plaintiff in a class action filed against Metro by civil rights groups led by the NAACP and Washington Lawyers’ Committee. The lawsuit alleges the transit authority's hiring practices violate the Civil Rights Act by using a background check policy that is “overly broad and unnecessarily punitive.”

Lawyers with the groups said at a news conference on Wednesday that Metro’s policy “goes far beyond any legitimate public safety concerns to permanently stigmatize and bar from employment well-qualified workers, a disproportionate number of whom are African Americans.”

Marcello Virgil, a second plaintiff who addressed reporters, said his conviction for selling crack in 1998 is not a reflection of the person he is today.

The 45-year-old father of five worked as a landscaping contractor at Metro's Greenbelt station. But when he applied to work as a custodian for Metro, the mistake he made more than a decade ago cost him the job after it was flagged by Metro’s screening system.

Virgil has been unemployed for six months since, despite what he calls an excellent work record. At the news conference, he read a recommendation letter written by his former Metro supervisor.

“Mr. Virgil was a valuable employee who highly valued attendance and punctuality. His friendly personality was contagious. His work ethic raised the level of productivity of his colleagues. His demeanor was always pleasant,” Virgil said.

Metro declined to comment on the lawsuit, but a spokeswoman referred to testimony given by Metro general manager Richard Sarles in February at a D.C. Council hearing. "Metro does allow for hiring people with certain criminal convictions, including drug offenses,” Sarles testified.

“I think it is important to note that Metro’s hiring policy does allow for the hiring of people with certain categories of criminal convictions. Offenses including certain property crimes, like burglary, robbery and theft may or may not disqualify a candidate depending on the frequency of the offenses,” Sarles said. “Also, those with a drug or controlled substance conviction may qualify for positions depending on the frequency and nature of the offenses.”

Groups contend Metro policy discriminatory

When asked why Metro adopted the more stringent background check policy with permanent disqualifiers in 2011, spokeswoman Caroline Laurin responded, “WMATA’s criminal background policy was updated in 2011 because we wanted to develop a policy that is concise and transparent.”

“In drafting our policy, we consulted other transit properties and government agencies, and many use similar criteria to WMATA. We developed a comprehensive policy that supports our safety responsibility to our employees and to the riding public, including the District of Columbia’s school children.”

Laurin noted that a majority of Metro workers are African American. ReNika Moore, an attorney with the NAACP Legal Defense Fund, said the current racial makeup of Metro’s workforce does not automatically validate its screening policy.

"If they have a policy that still ends up blocking out African Americans at much higher numbers than other groups, then it is still unlawful, if it is not job-related," said Moore, who said Metro’s system exceeds the seven-year background check recommended by the EEOC.

Jackie Jeter, the president of the Amalgamated Transit Union Local 689 which represents a majority of Metro’s workforce, said the union has opposed the new background check policy since it was instituted three years ago.

“They are too stringent and go beyond what other transit agencies do,” Jeter said. “Whether they are breaking the law remains to be seen.”

ATU Local 689 has raised questions about Metro’s hiring practices with the U.S. Department Labor and EEOC.

The civil rights groups behind the lawsuit and Jeter contend Metro should give individual applicants an opportunity to explain themselves on a case by case basis if their criminal records are flagged by the background check. They argue a non-violent drug offense from 20 years ago should not prevent someone from working today.

“That’s what all the other agencies we have checked with do: they give applicants the ability to explain exactly what is going on. Metro gives you the opportunity to explain after they have given a background screening, but there are certain infractions within the policy itself that will disqualify you if you have ever had a drug conviction,” Jeter said.

In his February testimony, Sarles said Metro has an appeals process for rejected applicants. The two African American job seekers who spoke at the news conference Wednesday, Little and Virgil, said they were unaware such an appeals process existed.

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