New York Complaint Says ‘The Garden’ Discriminated In Background Check

The hiring practices of one of the most famous entertainment venues in the world have been called discriminatory as the result of a background criminal check that turned up a job candidate’s assault conviction.

A New York City law firm filed a complaint with the Equal Employment Opportunity Commission claiming Madison Square Garden discriminates against African-American job applicants by illegally using criminal history reports in making hiring decisions.

The EEOC complaint alleges that Carlene Clarke, 27, received an employment offer letter from New York’s Madison Square Garden in September 2007 which was rescinded a month later after a background check discovered she had pleaded guilty to misdemeanor assault more than five years earlier.

According to the press release issued by Outten & Golden LLP, which represents Clarke, the rationale for the complaint is that “use of criminal histories in making hiring and other employment decisions has a disparate impact on African-Americans.”

Outten & Golden attorney Justin M. Swartz said, “The fact is, about one in five U.S. adults has a criminal record, and a disproportionate number of them are African-Americans and Hispanics.”

An MSG official declined to discuss the complaint, but emailed us a statement saying, “Ms. Clarke pleaded guilty to assault. We conduct criminal background checks in order to ensure the safety of our fans and employees. This policy is not discriminatory.”

New York is one of only a handful of states that has laws specifically limiting an employer’s ability to exclude job-seekers with a criminal record. Federal courts have also extended Civil Rights Act protection to minorities with criminal records, requiring in the case of convictions for an employer to consider the passage of time, the nature of the crime, and its relationship to the position.

Whether or not Clarke’s complaint is upheld, Brian Poe, founder and CEO of ClearMyRecord.com, said the use of background checks to disqualify job candidates and dismiss current employees has become so widespread that it may be time for Congress to enact a Fair Criminal Record Reporting Act.

“A criminal record shouldn’t be a life sentence,” Poe told us. But with electronic databases that now routinely reach back to the sixties and even earlier, “something you did 20 years ago will hurt you today,” he adds.

Poe founded ClearMyRecord.com in 1999 to help individuals remove or seal criminal and arrest records and get mention of them removed from electronic databases. The site won’t help people whose arrest involved a sex charge or a minor, but it has helped thousands of others, including, the company reports, one person who won a presidential pardon this year.

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Poe says his clients aren’t hardcore or career criminals, since states won’t permit them to clean their records. Most, he said, are minor offenders who made a mistake.

Typical, said Poe, is the case of a former police officer who was arrested for writing bad checks 18 years ago during a nasty divorce. The arrest has prevented the man’s hiring by other departments despite a clean record and steady employment in private security.

In another case, a career postal worker was fired after a periodic background check turned up his 1962 conviction for assault in connection with a Texas bar brawl.

It doesn’t take a felony or even a conviction to give someone a record. “These companies,” Poe said, referring to database firms that buy criminal and arrest records directly from the nation’s 50 states and 3,100 counties, “get all the records then resell them to smaller companies. Employers use these services and don’t (distinguish between) an arrest or a conviction.”

Because ClearMyRecord can’t help everyone convicted of a crime, Poe started Hard2Hire.org as a non-profit job service for ex-offenders. Since launching in June the site has grown to about 2,000 weekly visitors and, says Poe, several companies have agreed to consider hiring ex-offenders.

Poe explains that many companies with blanket policies against hiring ex-offenders may be willing to modify them in certain cases. “We go straight to employers and ask them about their policy,” he said, describing a give-and-take in which he’ll search for the threshold — say a 5- or 10-year-old property crime and clean record since — where a company might relent.

“We see this all the time,” Poe said, “where an old conviction is holding someone back. We need a Fair Criminal Record Reporting Act like the Fair Credit Reporting Act to keep one mistake from being a life sentence.”

John Zappe is the editor of TLNT.com and a contributing editor of ERE.net. John was a newspaper reporter and editor until his geek gene lead him to launch his first website in 1994. He developed and managed online newspaper employment sites and sold advertising services to recruiters and employers. Before joining ERE Media in 2006, John was a senior consultant and analyst with Advanced Interactive Media and previously was Vice President of Digital Media for the Los Angeles Newspaper Group.

Besides writing for ERE, John consults with staffing firms and employment agencies, providing content and managing their social media programs. He also works with organizations and businesses to assist with audience development and marketing. In his spare time  he can be found hiking in the California mountains or competing in canine agility and obedience competitions.

You can contact him here.

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9 Comments on “New York Complaint Says ‘The Garden’ Discriminated In Background Check

  1. Disparate Impact is a bad thing . . . but to say that an organization is disparately impacting a protected class by running criminal background checks is absolutely ridiculous.

    I don’t believe that the essence of disparate impact was meant more against organizations that had improper qualifications requirements, such as necessary test scores or the ever-infamous, “College Degree Required.” Other examples would be height/weight requirements, and subjective procedures such as interviews.

  2. Unfortunately, this article relies solely on the position of the law firm representing Ms. Clarke. We have no way of knowing whether the application identifies that a background check will be forthcoming or if the application has a place where candidates can list their criminal history. Did Ms. Clarke omit her case? Does the position in question depend upon “honesty” factors?

    In the face of a paucity of facts (you don’t expect the EEOC to change its “guilty until proven innocent” approach especially given the history of MSG?), this article has put the cart way before the horse.

    In Clarke’s attorney spouting that, “the fact is, about one in five U.S. adults has a criminal record, and a disproportionate number of them are African-Americans and Hispanics”, he has begun to create pseudo-data that may have no bearing in the case of MSG but its mere mention is intended to sway locals who may ultimately sit on a civil jury. Another sad day for New York politics!

    But a Fair Criminal Reporting Act??? Talk about putting a colorful coat of paint on a termite infested house!

    How about better education programs for early in life so people don’t have to resort to crime?

  3. THIS is the nuttiest thing ever. So now an employer is responsible if you happen to be black and have a criminal past?? MAYBE … just MAYBE … you should thought more carefully before assaulting someone.

    If criminal records impact those that are black this is now my fault? Ridiculous. Then again this was great advertising for clearyourrecord.com

  4. The plaintiff’s 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.

    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 other candidates 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.)

  5. Is this a joke? I’m sure Ms. Clarke knew MSG was going to do a criminal background check. The question is, did they let her know that her employment with them would be null and void if there was something on her background that would create a conflict of interest with her job duties? Chances are they did and because she’s in a protected class she can still cry wolf.

    My attempt to be objective: I think this “Fair Criminal Record Reporting Act” may have a little merit to it, but only to a certain extent. Assault, DUI’s, Bad checks, etc, are a few that standout to me. Why should these “perps” get a clean slate after they decide to fight or drive drunk or intentionally try to buy something when they know they don’t have the funds? Can you or I really trust someone to work for our company who would do such a thing? Yes, I do believe people deserve a second chance, but for every action there has to be a consequence.

  6. Crazy thing, if they hired this person, and something happened, the Garden could be sued for negligent hiring.

    Rob

  7. The issue isn’t with the company, it’s with the legal system. Anyone with common sense can see that minorities are targeted and prosecuted more heavily than whites. For that, yes the criminal background check appears to be unfair to minorities. Especially considering things that are not CONVICTIONS are showing up. An arrest/charge when you were 19 for a misunderstanding could prevent you from getting a menial position in your 30s and I personally take issue with that.

    So now we’re saying someone who makes a mistake or commits a misdemeanor of ANY sort should be prevented from gainful employement? Doesn’t that create a slippery slope that perpetuates crime? I have yet to meet one person that hasn’t knowingly or unknowingly committed one crime (and to the jokester that says “I’ve never done anything illegal”…congrats!). The difference between a young white male and a young black male committing the same crime is that the black male will be more likely to be arrested, charged and convicted. It’s the way our judicial system is and for those that deny it I’m sure you’re not nor have you ever had an open, honest conversation with an honest criminal lawyer. My uncle fights everyday for felons that can not get back into society after being rehabilitated (which is what the legal system is about..right?). How are they to get a job and lead an honest life if no one will hire them. This isn’t just felons either.

    Information regarding this has just been published and I don’t know why this seems so unbelieveable for people to understand. The study from Princeton said that a white male with a felony conviction would be more likely to receive a job offer than a black male with no criminal history. There are still racist people…just because you think you’re not doesn’t mean there aren’t people running companies that are.

    I’m really happy for those that don’t even understand how great their white privilege is. I really hope there’s never a time in your life where you’re put into a situation where you’re a minority and targeted just because the way you look.

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