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Maryland Court Dismisses Discrimination Claims Based on Employer’s Background Check

In the Internet age, many employers take it upon themselves to do their own “informal” background check on new hires by Googling the person’s name to see what comes up.  While it is not illegal to conduct such searches, a recent court decision from a Maryland federal judge shows that these searches may lead to litigation.

In the case of Bing v. Brivo Systems, LLC, No. PX-18-1543 (D. Md. 1/22/19), Plaintiff Bing applied for a  job as a Customer Care Representative with Brivo Systems.  Brivo extended him a job offer, and he began employment on October 17, 2016. On his first day, he was confronted by Brivo manager Charles Wheeler, who had done some Google research and found a newspaper article referencing Bing as having given his roommate a loaded gun which was then used to injure another person when it was discharged in “Halloween celebratory gunfire.” Bing admitted he was the same person mentioned in the article, and Wheeler fired him on the spot.

Bing responded by filing suit, alleging race and sex discrimination and violations of the Fair Credit Reporting Act. Judge Paula Xinis dismissed the claims, finding insufficient allegations of race discrimination in the Complaint. Judge Xinis noted that Brivo hired him knowing he was an African-American male, and, under Fourth Circuit law,  the close proximity in time between his hiring and firing creates a “strong inference” that discrimination was not a factor in the termination decision.  The Court found that Brivo’s post-hiring discovery that Bing’s gun was used in a shooting provided a legitimate non-discriminatory reason for the termination.

Judge Xinis also rejected Bing’s Fair Credit Reporting Act claim.  While the FCRA does impose procedural requirements on employers who use background reports to reject a candidate, the law only applies to information compiled by a “consumer reporting agency.” A consumer reporting agency is defined as a person who “for monetary fees, dues, or on a cooperative non-profit basis” compiles credit or other consumer information “for the purpose of furnishing consumer reports to third parties.”  Bing’s supervisor Wheeler made the decision to terminate based on information he found in his own Google search, not on information supplied by a third party, thereby bringing it outside the purview of the FCRA.

Judge Xinis’s decision to dismiss the Complaint does not necessarily bring finality to the litigation.  The lawsuit was dismissed without prejudice, meaning Bing can amend the Complaint to allege facts sufficient to survive a motion to dismiss. It remains to be seen if Brevis is truly “out of the woods” after making the decision to fire Bing based on Google search results.

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