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Nine plaintiffs filed a class-action lawsuit against the Washington Metropolitan Area Transit Authority—along with three of its contractors—today, alleging that WMATA’s “comprehensive” criminal background check policy led to the unlawful and unnecessary termination of several employees, as well as rescinded job offers for others.

The lawsuit, which was filed by The Washington Lawyers’ Committee for Civil Rights and Urban Affairs, the NAACP Legal Defense and Educational Fund, and Arnold & Porter LLP, claims that WMATA’s hiring policy is in violation of Title VII of the Civil Rights Act and EEOC guidelines. A release states that WMATA’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.”

According to the Washington Lawyers’ Committee, among the plaintiffs is 47-year-old Erick Little, who was offered a job as a WMATA bus operator, but then had the offer withdrawn because of a 27-year-old conviction “he disclosed during the interview process.” Another plaintiff, 46-year-old Marcello Virgil, says he was fired from his custodian job by a WMATA contractor “based on a 15-year-old drug-related conviction that he disclosed before starting work for the contractor.”

In February, Councilmember Muriel Bowser (D-Ward 4) held a roundtable on WMATA’s background check policy, which she described as “overly restrictive.” At the time, Metro General Manager Richard Sarles defended their policy, which was developed in 2011, saying that it’s “balanced and fair.”

When asked for comment on the lawsuit, WMATA referred to Sarles’ original testimony at the February roundtable. “In developing the policy,” Sarles said, “WMATA Human Resources staff reached out to the local jurisdictions and peer transit agencies, researched relevant case law, considered Title VII of the Civil Rights Act and closely examined our own internal practices, as well as accounted for our business needs and safety responsibilities to the public and to our own employees.” He also said that he “would like to clarify for the record that Metro has not terminated the employment of any employee due to a criminal conviction prior to their employment with us,” but today’s lawsuit alleges differently.

Here’s the full testimony from Sarles that serves as WMATA’s stance on the lawsuit:

Chairperson Bowser, I appreciate the opportunity to come before you and the Committee to explain Metro’s background screening policy, which also guides the hiring of individuals with criminal convictions.

Given the Council’s recent action calling on WMATA to establish a policy related to background screenings, I wanted to make certain that the Council was aware that such a policy was established in 2011.

In developing the policy, WMATA Human Resources staff reached out to the local jurisdictions and peer transit agencies, researched relevant case law, considered Title VII of the Civil Rights Act and closely examined our own internal practices, as well as accounted for our business needs and safety responsibilities to the public and to our own employees.

While conducting our review, we found that our internal practices were previously inconsistent and unevenly applied. In reviewing how other transit properties or government agencies approached hiring, we found that a lot of practices are on a case-by-case basis, and while some used similar criteria as WMATA’s, we also found a lack of specifics.
It was clear that WMATA needed to develop a comprehensive policy that was concise, transparent and could be consistently applied while also supporting our safety responsibility to our employees and to the riding public.

I’d like to explain why I think our policy is balanced and fair and what it provides for versus some of the misconceptions that I have heard.

• First, our policy takes in to account different levels of requirements for different positions of responsibilities. There are three job categories: public facing, such as bus operators, station managers, street supervisors and station cleaners; the second include fiduciary positions, such as our accountants, contract administrators, purchasing agents and transit sales clerks; and the third category is reserved for all other positions that are not fiduciary or public facing.

  The policy is clear and transparent and does not come with the uncertainty of a case-by-case approach. 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.

  As a Board Member and a leading advocate for school passes, you know the critical role that Metro serves in transporting the District’s school children each weekday. Metro is essentially the District’s school bus service. The District’s school children and their parents put a great deal of trust in us, as do the millions of the region’s residents and visitors who rely on our bus operators and other frontline service employees each day. Consequently, some offenses such as murder, rape, kidnapping, sex offenses and child abuse are automatic permanent disqualifiers.

• Second, and at the same time, 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. Also, those with a drug or controlled substance conviction may qualify for positions depending on the frequency and nature of the offenses.
• Third, Metro only conducts credit checks on job candidates seeking positions that have financial responsibilities. This does not include bus operators, station managers, or train operators, for example.
• Fourth, the policy respects sealed juvenile records, as well as convictions that have been expunged from an applicants’ record.
• Fifth, we believe in and the policy provides for second chances. All disqualified candidates are given the opportunity to submit an appeal with supporting document to Metro for review. Additionally, candidates may be eligible for positions after a certain amount of time has lapsed from a conviction.

Above all, the safety of Metro’s riders and employees is our most important priority. Out of concern for the safety and security of all of our customers, particularly our children, and people with disabilities who are alone with drivers, Metro does not hire candidates who have committed violent crimes or convicted sex offenders.

I would like to clarify for the record that Metro has not terminated the employment of any employee due to a criminal conviction prior to their employment with us.