A federal court in Ohio held in Waldon v. Cincinnati Public Schools (1:12-CV-00677) that an Ohio law (H.B. 190 effective 11/14/07) requiring a criminal background check of current school employees raises a plausible claim of disparate impact under Title VII of the Civil Rights Act for two individuals terminated as a result of the check.

Plaintiffs, two long-term African American employees of the school system were terminated due to the following criminal convictions — in one case, felonious assault with a two year term of incarceration in 1977, and in the other, a drug charge in 1983. They respectively worked for the school system for 30 and 18 years.  The matter before the court was a Motion to Dismiss and the school system’s argument was that it should prevail because it followed Ohio law when it terminated the Plaintiffs’ employment.

In the decision, the court focused mostly on a discussion of employment discrimination under Title VII and only briefly on the issue of the state law mandate to conduct the criminal background check, which gives rise to the matter.  This is unfortunate because by not doing so it places the burden on employers to balance whether to follow a state law mandate or not.  The court says only that Title VII trumps state mandates and the school system “could have” raised questions with the state board of education about the law. Presumably they could have asked the board of education whether it was acceptable to apply the state law because in doing so they believed it could have a discriminatory impact?  However, that is an educated guess and it is unclear what the court meant by this and how the state board of education could have intervened. 

The issue of how to apply state law under the Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 is a significant issue because the EEOC makes clear in its Enforcement Guidance that state law mandates may be pre-empted by Title VII.   Which leaves those in certain industries regulated by state laws, such as healthcare, guessing as to the appropriate application of state law under the EEOC’s Enforcement Guidance.