A new federal Title VII lawsuit was filed in California alleging that the NCAA’s 2011 rule which permanently bars, among other things, convicted felons from coaching in NCAA-certified tournaments, discriminates against African-Americans by a rule adopted in 2011 barring which permanently bans felons from coaching in NCAA-certified tournaments ex-convicts from coaching high school basketball.  See Hardie v. National Collegiate Athletic Association et al, 3:13-cv-00346 (S.D. Ca).

The complaint alleges that “Policies that categorically exclude individuals with felony convictions are known to have a disparate impact on African-Americans. … African-Americans are arrested, charged and convicted of drug crimes at greater rates than whites, even though usage rates are similar.”

We blogged on April 29, 2012 that there is nothing in Title VII that deals with people with a criminal history being in a protected class. That is, it does not bar employers from asking job applicants or employees about arrests, convictions or incarceration. However, we know that discrimination may involve an employment practice or policy which may have a “disparate impact” upon members of a protected class.

Employers should note that the EEOC is sensitive to the “disparate impact” which criminal background checks (as well as, for example, credit screening), may have on protected classes, and therefore may violate Title VII. This is not a new issues; the EEOC has been wrestling with this issue since at least as far back as 1987.