Gregory Waldon, et al., v. Cincinnati Public Schools
, U.S. District Court for the Southern District of Ohio, 2013 U.S. Dist. LEXIS 58689; (Apr. 24, 2013)
Can an employer be held liable for disparate impact discrimination when it terminates employees in accordance with the mandates of a new state law?
In 1977, Gregory Waldon was sentenced to prison on a conviction for felonious assault. The school district supported his request for parole by guaranteeing employment, notwithstanding his criminal conviction. In 1988, Britton was convicted in the sale of marijuana valued at $5. Both Waldon and Eartha Britton are African-American. Waldon had been employed by the defendants for more than 35 years and Britton for 18 years when the State of Ohio passed a law (House Bill 90, effective Nov. 14, 2007) that mandated that “*** if an employee had been convicted of any of a number of specified crimes, no matter how far in the past they occurred, nor how little they related to the employee’s present qualifications, the legislation required the employee to be terminated.” As a result, both Waldon and Britton were fired even though neither of them had any adverse marks on their employment record. All told, the school district terminated 10 employees as a result of the legislation, nine of whom were African-American. Plaintiffs filed suit, claiming the school district’s mass terminations had a disparate impact on African-Americans. The school board claimed that it acted solely because of the state law and, therefore, could not be held liable for any discriminatory effect.
Title VII trumps state mandates.
The school board cannot use the state law as a defense in a disparate impact case. “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.” Further, “*** in relation to the two plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when 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.”
: Legislatures and employers are free to place limits on the hiring of persons with criminal backgrounds only to the extent that the limitations are related to the job to be performed or which distinguish between criminal backgrounds that pose an unacceptable level of risk and those that do not.
The law in question has subsequently been amended so as to allow persons with prior convictions to demonstrate rehabilitation.