Employers' use of criminal records in making employment decisions about applicants and employees is increasingly coming under scrutiny. A recent decision from a federal court in Ohio illustrates the potential liability for employment discrimination that may flow from implementing an overly broad and unbending exclusionary policy based on criminal convictions, even when the exclusionary policy is required by state law. In Waldon v. Cincinnati Public Schools, the United States District Court for the Southern District of Ohio upheld a claim that a public school system's implementation of a state law requiring termination of public school employees based on past criminal convictions disparately impacted African-American employees.
The Court's Decision in Waldon v. Cincinnati Public Schools
In 2007, the State of Ohio enacted a law requiring criminal background checks of current public school employees, including those whose duties did not involve the care, custody, or control of children. Pursuant to the law, if an employee had been convicted of any of a number of specified crimes, no matter how far in the past they occurred or how little the crimes related to the employee's present qualifications, the law required that the employee be terminated.
Adhering to this state law, the Cincinnati Public School System conducted criminal background checks on its employees. Based on the results, the School System discharged 10 employees, nine of whom were African-American, including Gregory Waldon and Eartha Britton. The background check revealed that Mr. Waldon had been convicted of felony assault in 1977, resulting in incarceration for two years, and that Ms. Britton had been convicted in 1983 on a minor drug offense. At the time of their terminations, Mr. Waldon had worked for the School System for nearly 30 years, and Ms. Britton had worked for the School System for 18 years. Mr. Waldon and Ms. Britton filed suit against the School System alleging race discrimination in violation of Title VII and the Ohio antidiscrimination law, contending that their terminations were based on a state law that had a racially disparate impact.
The court, in denying the School System's motion to dismiss the lawsuit, held that plaintiffs had presented sufficient facts to support their disparate impact claims under federal and state antidiscrimination laws. As the court explained, "[d]isparate impact results from facially neutral employment practices that have a disproportionately negative effect on certain protected groups and which cannot be justified by business necessity." Disparate impact does not require a showing of discriminatory motive and is based only on "statistical evidence of systematic discrimination." To overcome a showing of disparate impact, an employer must show that the policy in question is consistent with business necessity. Here, the court found that while the policy of conducting criminal background checks may serve a business purpose due to school system employees' proximity to children, in relation to the two plaintiffs in this case, the policy barred employment when their offenses were remote in time and when the employees had provided excellent service for several decades. The court therefore concluded that the policy did not constitute a business necessity as a matter of law.
The court additionally rejected the School System's argument that plaintiffs' claims should be dismissed because the School System was merely following state law when it terminated plaintiffs' employment. The court held that the School System was not necessarily compelled to implement the state law when it realized that nine of the 10 employees it was terminating were African-American. The court, relying on well-established law, held that "Title VII trumps state mandates" that are contrary to the federal prohibition of employment discrimination and concluded that the School System could have raised questions with the State Board of Education concerning the racial disparity it confronted instead of blindly implementing the policy.
Practical Implications
The Waldon decision provides a lesson for all employers implementing exclusionary policies based on criminal convictions. Such policies can and often do have a disparate impact based on race and, in some instances, on national origin. To minimize the risk of disparate impact liability under federal and state antidiscrimination laws, employers covered by those laws should avoid policies excluding individuals from employment opportunities based on any criminal conviction, no matter how unrelated it may be to the job in question or how remote in time the conviction may be. Even when an exclusionary policy is more narrowly tailored and focuses only on criminal convictions that are relevant to the nature of the particular employment, employers should generally conduct, as the Waldon court suggested, an individualized assessment of a particular applicant or employee's fitness for the job in question, considering such factors as the length of time since the conviction and the individual's long-term successful performance of the job or a similar position.
For employers that are required by state law to conduct criminal background checks and to reject applicants or terminate employees based on the results, the Waldon decision creates a dilemma. The fact that there is a state law requiring such background checks is not a complete defense to discrimination claims by employees terminated pursuant to the state law, yet ignoring the mandates of the state law can also have adverse legal consequences for the employer. In complying with such state laws, an employer should be alert to the potential disparate impact they may have on its workforce and address such concerns with the appropriate state authorities.
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