Stuck In the Middle: Title VII Conflicts with State Law in Ohio Federal Case

Angela Preston

EEOC Guidance on Background Checks

If you hadn’t noticed, the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, affectionately referred to here as “the guidance,” has been taking up a disproportionate amount of blog space over the past year. And for good reason. The guidance is a seemingly endless source of debate, confusion, and unfortunately for many employers, litigation.

One recurring question from clients is this: what do you do when a state law requires a criminal background check? Do you follow the state law, or the guidance?

Many states have laws that disqualify applicants for certain positions based on specific types of crimes.  While the EEOC says that nothing in the guidance prevents employers from doing a criminal background check, the commission also says that state law mandates for criminal background checks may be discriminatory. There is no safe harbor for employers who are required by state law to do a criminal background, and state laws are preempted by Title VII.  

This leaves many employers in a pickle. Especially those employers hiring in heavily regulated organizations like nursing homes, hospitals, child care facilities, schools…you get the idea. State laws mandating employment background checks have been on the rise, especially in light of the random violence we have seen in schools.  When I met with EEOC Commissioners prior to the adoption of the guidance, I was assured that there would be no actual conflict of law problem in practice, since the EEOC was not going to pursue cases where state mandates required criminal history screening. However, as I (and others much smarter than me) feared, it was only a matter of time before these cases would emerge.

And speaking of people smarter than me, my good friend Montserrat Miller  at Arnall Golden Gregory recently blogged on just such a case.  In Waldon v. Cincinnati Public Schools (1:12-CV-00677) a federal court in Ohio held that a state law  requiring a criminal background check of current school employees raised a potential claim of disparate impact under Title VII of the Civil Rights Act.  The Plaintiffs were two long-term employees of the school system who were terminated due to criminal convictions for felonious assault and drug charges. They were also African American. Their past crimes were characterized in the opinion as follows:

In 1977, Plaintiff Gregory Waldon was found guilty of felonious assault and incarcerated for two years (doc. 1). Defendant’s civil service office supported Waldon in proceedings before the Ohio Parole Board, indicating it would be happy to offer Waldon employment, which it did in early 1980 (Id.). Waldon worked for nearly thirty years for Defendant, most recently as a “systems monitor,” with no contact with school children (Id.). Waldon’s performance was excellent and of value to Defendant and to the public (Id.). Plaintiff Eartha Britton was convicted in 1983 of acting as a go-between in the purchase and sale of $5.00 of marijuana (Id.). She worked for Defendant for eighteen years as an instructional assistant (Id.).

I am not going to argue that these two long term employees should have been terminated. Far from it. Based on what I have read, these two  had served well in their positions, and for a very long time, by anyone’s standards. But the school system was bound to follow a state law—a law that was enacted to protect children. This is a terrible case for a lot of reasons, but it does illustrate the catch -22 that school systems and other employers face. The school system argued that it should prevail because it followed Ohio law when it terminated the Plaintiffs’ employment. The law in question has since been amended to allow for rehabilitation, but at the time, the school system was following the law. The court concluded that following a state law is no defense to a claim of disparate impact under Title VII.

The Court finds no question that Plaintiffs have adequately plead a case of disparate impact. Although there appears to be no question that Defendant did not intend to discriminate, intent is irrelevant and the practice that it implemented allegedly had a greater impact on African-Americans than others. The Court rejects Defendant’s view that the state law must “purport” to discriminate in order to be trumped by Title VII. Such a view would gut the purpose of Title VII, and would run contrary to Griggs, as well as subsequent authorities in which state mandates were challenged.

The Last Word?

This case is not the last word–it’s just the beginning. While this case only touched on the state preemption issue as they relate to the guidance, it does illustrate the dilemma for employers. If you are an employer under a state or local mandate to conduct criminal background checks, you should evaluate your policies to make sure that your hiring policies do not disqualify ex-offender to an extent that would exceed the EEOC guidance. It is only guidance until a court says it’s the law, but this case clearly points to at least one court that upholds the enforcement of Title VII over state law.

Check out our video on EEOC guidance:

Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
Angela Preston
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