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Settlement talks underway in lawsuit over banned day-care workers

A mother and her child outside a day care center.David L. Ryan/Globe Staff/File 2016/Globe Staff

State and civil rights lawyers are discussing a potential settlement in a class-action lawsuit that challenges the state’s unusual new lifetime ban on child-care workers who have juvenile records.

A Suffolk Superior Court judge agreed Monday to postpone further action in the case against the Massachusetts Department of Early Education and Care until Jan. 3, as the two sides negotiate.

Tara Gregory, 49, a Hyde Park day-care worker for more than 20 years, sued the department after it disqualified her from working in early education because she’d been involved in a fight as a teenager. Gregory had no opportunity to appeal the decision.


New federal regulations require more stringent background checks of day-care workers, and permanently bar people convicted of certain offenses from working with young children.

Massachusetts is believed to be one of the only states that has also instituted juvenile record checks. Lawyers for Gregory, who is black, said the juvenile background checks disproportionately hurt people of color.

“We have had heard from dozens of people who have been impacted by this law, both people applying for jobs in child care and ones already working,” said Sophia Hall, an attorney who is part of the team working on the case pro bono.

A department spokeswoman declined to comment Monday on the negotiations, citing the pending litigation.

After Gregory filed the lawsuit, the state allowed her to go back to work and agreed to review her case. But the state law remains in place.

The department, in response to a Globe public records request, said that from April 1 to Sept. 4, it sent notices of mandatory disqualification because of a background check to 81 people, including nine because of their juvenile records.

But the data do not include those who work in any of the state’s 6,000 licensed family-based providers, which means the actual number of those affected by the law could be substantially higher.


The state notified Gregory in April that she was disqualified from working in the field because of her juvenile record and said she would have to leave her job within 14 days.

Gregory was among a group of teenage girls who got into what she describes as a “big battle” at Ashmont Station in Dorchester in 1986. All were charged, and Gregory entered a plea of delinquent to a charge of assault and battery with a dangerous weapon — her shod foot — and received a two-year suspended sentence, according to the lawsuit.

Gregory had an exemplary record at work, according to the suit, and the juvenile record was the sole reason for her disqualification.

Lawyers for Gregory say the use of such far-reaching background checks — with no right to appeal mandatory disqualifications under the new law — discriminates against minority communities, which have high rates of police involvement and incarceration.

In Massachusetts, young African Americans are at least 10 times more likely than white youth to be incarcerated, according to a 2017 report by the Sentencing Project.

The divide grew 66 percent from 2001 to 2015.

The state law, which took effect last October, was intended to comply with new federal rules aimed at improving day care safety. The federal law imposes a lifetime ban on those convicted of any one of eight felonies, including murder, arson, and assault, or of a violent misdemeanor against a child, such as sexual assault or child pornography.


Banned workers may appeal only the accuracy of the record, not the ruling that says they can no longer work in child care.

But Massachusetts regulations go much further.

State rules allow regulators to demand legal records from any child-care employee or job applicant for virtually any prior criminal offense, such as disorderly conduct or drunken driving, even if the offense is decades old or was committed when they were juveniles.

Researchers at the Center for Law and Social Policy, a national group that advocates for low-income people, have been reviewing new day-care background checks nationwide and say they have found only one other state, Utah, that uses juvenile records in their background checks.

“In a field where you have disproportionately women of color in these positions, this could really create huge barriers to employment, and to having culturally and linguistically appropriate staff,” said Christine Johnson-Staub, a senior policy analyst at the center.

Lawyers in the Massachusetts lawsuit say the lack of an appeals process makes the ban particularly egregious.

“At the end of the day, I don’t want people judged by their worst day when they were an adolescent,” Hall said.

Despite the stringent new Massachusetts rules for day-care workers, the state has not adopted similar rules for employment in public and private schools.

The state does not consider juvenile records when running background checks for applicants or workers in kindergarten through 12th grade, according to the Department of Elementary and Secondary Education.


Nor does it have any list of offenses it considers mandatory disqualifiers, as there are in the new day-care rules.

Kay Lazar can be reached at Follow her on Twitter @GlobeKayLazar.