In 2008, the state of Ohio passed a law requiring public schools to go through their personnel files, perform background checks, and summarily fire any school employee who had ever been convicted of certain crimes. This was to be done regardless of how long ago the crimes had been committed and without any consideration of the individual employee’s work record or whether he or she had any contact with children.
When the Cincinnati public schools implemented the law, they found ten employees with applicable criminal convictions. Nine of them were African Americans.
Two of those employees sued the school district for wrongful termination based on race discrimination, under the theory that, when workers’ criminal backgrounds are not plainly relevant to job requirements, using them to make personnel decisions is discriminatory because the negative impact falls unduly heavily on minorities.
The U.S. Supreme Court has indeed held that Title VII of the Civil Rights Act requires employers to base personnel decisions on factors reasonably related to actual job requirements, and the EEOC has made clear that employers must provide a real operational need before they can make adverse employment decisions based on the results of background checks.
One of the two plaintiffs was convicted of felonious assault in 1977, but since then had worked for the school district for 30 years. His most recent position, systems monitor, does not involve contact with children. The other had been convicted in 1983 for her part in selling $5 worth of marijuana.
The school district argued it never intended to discriminate, but in disparate impact cases intent is not relevant. It also argued that the state law required them to fire the men, so it asked a federal judge to dismiss the case. The judge refused, and the case can move forward.
"Obviously the policy as applied to serious, recent crimes addressed a level of risk the defendant was justified in managing due to the nature of its employees' proximity to children," he wrote. "However, in relation to the two plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when [one plaintiff’s] offense was insubstantial, and when both had demonstrated decades of good performance.”
"Title VII trumps state mandates,” he explained, “and defendant could have raised questions with the state board of education regarding the stark disparity it confronted."
The two plaintiffs were valuable employees, and their past convictions posed no obvious risk to students, the judge concluded. Their wrongful termination claims deserve to be heard, just as the two workers deserved the second chances they were given.
Source: Courthouse News Service, “Firing for Old Crimes May Leave Schools Liable,” Kevin Koeninger, April 30, 2013