Adding to last year’s EEOC criminal background check guidance1, Minnesota’s recent background check restrictions, and some other federal precedents, in Waldon v. Cincinnati Public Schools2 , the U.S. District Court for the Southern District of Ohio recently denied a motion to dismiss in a case where the employer terminated employees with certain criminal convictions pursuant to state law. The employer defended on the grounds that state law required it to terminate the employees

Most states and the District of Columbia require background checks for certain occupations, such as nurses, caregivers, daycare providers, and school employees. In 2007, the State of Ohio enacted R.C. 3319.391, which requires school districts to perform background checks on current or future school employees. If the background checks reveal certain criminal convictions, ranging from murder to simple drug conveyance, the school district is required to terminate the employee (or in the case of prospective employees, not hire them), no matter how long ago the conviction occurred.

In Waldon, two, long-tenured, African-American school employees were terminated after their background checks revealed prior criminal convictions. The first plaintiff was an 18-year employee and was convicted of an offense involving the conveyance of $5 worth of marijuana in 1983. The second plaintiff was a 30-year employee, convicted of felonious assault in 1977 and sentenced to two years in prison. The plaintiffs, who both had stellar performance records, were two out of the ten total employees Cincinnati Public Schools terminated in 2008 as part of the district’s compliance with R.C. 3391.391. The plaintiffs alleged their terminations were based on a state law that had a racially-discriminatory impact because nine of the ten terminated employees were African-American.

Cincinnati Public Schools argued that the case should be dismissed because its decision to terminate was motivated only by its desire to follow Ohio law. The plaintiffs argued that despite state law to the contrary, Title VII “trumps” the state law and that the law resulted in a disparate impact. The court denied the school district’s motion to dismiss and held that the employees made the threshold showing of a disparate impact, finding that reliance on a state law, by itself, was not enough to defend against a showing of disparate impact. A showing of disparate impact can only be defended by proving that the practice is “job related for the position in question and consistent with business necessity.” The court found that the background checks were not a business necessity because they did not measure technical aptitude or ability, were not limited in time, and involved offenses that in some cases were very insubstantial.

While the court’s decision may seem surprising, it may signal the beginning of a trend that employers should be aware of. The court’s decision, the EEOC Guidance, and at least one Second Circuit decision3 all suggest that compliance with state laws mandating background checks may not be an adequate defense to a disparate-impact claim. These developments leave employers with a tough issue to resolve: either ignore a state law and argue Title VII trumps the state requirements, or follow the state requirements and leave open the potential for liability under Title VII.

The case, however, contains some important takeaways for employers seeking (or compelled) to conduct background checks. First, background checks should always be limited to issues surrounding technical aptitude or ability to perform the particular job. Employers must determine whether, based on all available evidence, the background inquiry is closely related to the job classification and the specific offenses demonstrate an employee is unfit for performing the particular job. Second, background checks should be limited in time. Employers should always place a reasonable time limit on the scope of the background checks and limit their inquiries to recent years. An “unlimited” inquiry into the employee’s background will likely not be permissible.

While the Waldon decision involved a school district, it likely affects any employer that is required to conduct background checks. For example, Ohio law requires criminal records checks for any person providing home health care to patients 4, those providing direct care in hospice programs 5, and those working at child daycare centers 6. Although employers can never completely avoid the risk of liability, following the EEOC’s guidance and consulting counsel prior to terminating an employee will help employers minimize their exposure. In the end, however, some employers will simply have to weigh the risks of choosing between a rock and a hard place.