Lawsuit claims background checks discriminate against childcare workers

Excerpted from wbur By Carrie Jung

The group Lawyers for Civil Rights has filed a class-action lawsuit against the commonwealth of Massachusetts over what they’re calling overly broad and discriminatory background check regulations for childcare workers.

The rules were instituted as part of a larger regulation update state legislators passed last year to comply with new federal mandates. At issue is an additional set of rules included in the Massachusetts law that gives state officials the power to review a broad range legal records, including juvenile records, during routine childcare employee background checks. If someone is flagged, officials with the Massachusetts Department of Early Education and Care (EEC) have the power to ban them from working in the industry. Impacted employees have no option to appeal.

The lawsuit was filed on behalf of Tara Gregory, who was forced to leave her job with New Beginnings Academy in Hyde Park this spring. The lawsuit claims the Massachusetts Department of Early Education and Care told Gregory she was disqualified because of her juvenile record. Thirty-three years ago, when Gregory was 16, she got into a fight with a group of girls and allegedly kicked someone. She entered plea for the charge of assault and battery with a dangerous weapon and spent two years on probation.

“I think this is unfair. This [record] has never affected me,” Gregory said in an interview. “I was a child myself.”

Gregory is currently working as a driver for a ride sharing company to pay the bills. She said she passed that company’s background check without issue. Gregory explained that she filed the lawsuit because she doesn’t want to walk away from a career, she’s had for more than 20 years.

“I’m hoping it’s going to help me and many others,” she said.

Gregory v. Commonwealth of Massachusetts takes issue with two main facets of the new state regulations. First, the attorneys argue EEC’s policy to allow lifetime disqualifications from working in the childcare field without the right to an appeal violates the Massachusetts Constitution’s guarantee of due process.

“The idea that a woman could have worked in a space with thousands of young people over the 20 years of her career and suddenly can be told that she’s no longer fit for this work,” said Sophia Hall, Gregory’s attorney. “This is precisely what these background checks are not supposed to do.”

Hall added, disqualifications based on juvenile adjudications are inherently discriminatory because they disproportionately impact childcare employees of color.

“Because of racial profiling and presence of police in communities of color, youth are more likely to be arrested and to be convicted of juvenile charges than white youth,” said Hall.

The lawsuit calls on the Massachusetts Superior Court to grant a preliminary injunction on the rules that require state officials to permanently disqualify employees from employment based on juvenile offenses.

Officials with EEC have said the enhanced background checks were necessary to remain compliant with federal rules and so EEC could continue to qualify for more than $277 million of annual federal funding. But state officials would not comment on the lawsuit.

When Gov. Charlie Baker introduced the full regulations last year, he said in a statement, ““Allowing the department to access important information and conduct expanded background checks will provide additional safeguards to protect our kids.”

Childcare industry experts say they’re not surprised a lawsuit like this has been filed.

“We have always believed, given the overreach, given the lack of an appeal process, that it was inevitable,” said Bill Eddy, executive director of the Massachusetts Association of Early Education and Care. He added that this case will likely be the beginning of additional litigation as EEC systems are fully updated with the new requirements and more employees come due for routine background checks.