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

Aug 19, 2008
This article is part of a series called News & Trends.

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Clarke, 27, received an employment offer letter from New York’s Madison Square Garden in September 2007 which was rescinded a month later after a background check discovered she had pleaded guilty to misdemeanor assault more than five years earlier.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

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 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.”

This article is part of a series called News & Trends.
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