Labor & Employment

2nd Circuit won’t consider reinstating suit alleging refusal to hire felons amounts to hiring bias

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The 2nd U.S. Circuit Court of Appeals at New York has refused to consider reinstating a hiring-bias lawsuit claiming that a company’s ban on hiring convicted felons had a discriminatory impact on Black job applicants.

The en banc appeals court refused to rehear the case on Tuesday, report Thomson Reuters Legal and Law360.

Five judges dissented from the court’s refusal to reconsider the case, all appointees of Democratic presidents.

The suit against NTT Data had alleged that the no-felons policy had a disparate impact on Black applicants because they are arrested and jailed at higher rates than their proportion of the population.

A 2nd Circuit panel had ruled 2-1 in September that the lawsuit plaintiffs sought jobs with certain educational and technical credentials, and there is no evidence that national incarceration statistics are representative of the job applicant pool for the positions that they sought.

Among the en banc dissenters was Judge Rosemary Pooler.

“This case rests on a simple question—whether a blanket policy of excluding individuals with felony convictions from employment at NTT has a disparate impact on Black applicants,” Pooler wrote. “To any person with a cursory understanding of America’s troubled racial history, the answer is clearly yes.”

Pooler said the panel majority “uses a statistical sleight of hand to hide the clear implications of NTT’s blanket policy.”

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