Criminal background checks: Two cases show what judges are thinking
You recall that last year, the EEOC announced its heightened interest in the use of background checks for job applicants, warning that the checks could have a disparate — and unlawful — effect on minority candidates. Two recent cases offer a look at how the background check issue figures in today’s workplace.
The first case involves Caroline Eldridge, former HR manager for the Municipality of Norristown, PA.
When her boss directed her to conduct background checks on two individuals, Eldridge balked, saying she believed the checks would be “violations of the federal and state civil rights laws.” After another run-in with her supervisor over the questions asked of an interviewee, Eldridge was fired.
She sued, saying she’d been fired for objecting to running the background checks — “protected activity,” she claimed, because it involved the civil rights of others.
The court disagreed. The EEOC never issued a ban on the use of candidate background checks, only the discriminatory use of the results of those checks.
And since Eldridge never claimed there was discriminatory action against the individuals involved, she had no grounds for a retaliation charge.
Cite: Eldridge v. Municipality of Norristown.
Federal bias laws trump state statute
The second case involved two long-term employees of the Cincinnati Public Schools.
The state of Ohio enacted legislation to require criminal background checks of all school employees, even those whose duties didn’t involve contact with children.
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.
Gregory Waldon and Eartha Britton, both African-American, worked for many years and provided the school system with “excellent service,” according to court papers.
Their background checks turned up some criminal activity. Thirty years earlier, Waldon was found guilty of assault and served two years in prison. Britton had been convicted on a minor drug charge some 25 years earlier.
The school district, citing state law, fired them both.
School officials should have questioned mandate
They filed suit, alleging the results of the background check requirement had a “disparate impact” on minorities. Indeed, of ten background checks that came back with offenses listed, nine were those of African-Americans.
The school district claimed it was simply following state law when it fired Waldon and Britton. But the court said, “In this case, the policy operated to bar employment when their offenses were remote in time … 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.”
“Moreover, the court cannot conclude that [the school system] was compelled to implement the policy, when it saw that nine of the ten it was terminating were African-American. [School officials] could have raised questions with the state board of education regarding the stark disparity it confronted.”
The real bottom line, however, was that federal anti-bias law trumps state mandates, the judge said.
Cite: Waldon et al. v Cincinnati Public Schools.
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