Last year, the EEOC issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. While the Guidance was much more fair and balanced than many employer advocates (me included) expected, it does include some head-scratchers for businesses. One such conundrum is how regulated employers are supposed to act when across-the-board criminal background searches are required by state law, as the EEOC takes the position that a blanket requirement violates Title VII.
Per the EEOC:
States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.
How is an employer supposed to handle this conflict? Waldon v. Cincinnati Public Schools, currently pending in the Southern District of Ohio, may provide some future guidance. That case concerns the application of Ohio H.B. 190, which became law in 2007. That law requires criminal background checks of all current school employees, regardless of whether their duties involve the care, custody, or control of children, and mandates the termination of any employee with a certain number of historical convictions, regardless of the convictions' age.
Two African-American employees challenge that H.B. 190 has an unlawful disparate impact because of race. Both were terminated based on decades-old convictions. All told, the Cincinnati Public Schools fired 10 employees as a result of background checks conducted pursuant to H.B. 190; nine of the 10 fired were African-American.
In is early in the litigation of the Waldon case. The court denied the employer's motion to dismiss.
First, it concluded that it was clear that the Plaintiffs pleaded a prima facie 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 existence of statistically significant disparate impact, however, if only the first step in the analysis. An employer can avoid liability if the challenged practice is justified by business necessity. While the court believed this issue to be "a close call," it ultimately concluded that it could not make that call on a motion to dismiss:
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. However, in relation to the two Plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when Plaintiff Britton's offense was insubstantial, and when both had demonstrated decades of good performance. These Plaintiffs posed no obvious risk due to their past convictions, but rather, were valuable and respected employees, who merited a second chance.… Under these circumstances, the Court cannot conclude as a matter of law that Defendant's policy constituted a business necessity.
Talk about a tough position in which to place an employer. Does the employer violate state law or violate Title VII? Ultimately, I think the correct answer should be neither. Shouldn't the need to follow state law provide the employer's "business necessity?" If not, employers will be faced in the untenable position of following one law and violating the other.