In a ruling on a motion to dismiss, U.S. District Judge Arthur Spiegel found that the Cincinnati Public Schools Could be forced to ignore a state law (H.B. 190, passed in 2007) that prohibited employment by schools of convicted felons and others convicted of drug offenses, no matter how long ago the offenses occurred. Cincinnati Board of Education Case 04-24-2013.pdf . One of the plaintiffs had been convicted of felonious assault and the other of acting as a go-between for the sale of a small amount of marijuana. Both were good employees, according to the school system, and would have been retained except for the state law. There was no claim of intentional discrimination. The district had to terminate ten employees under H.B. 190, and nine of them were African-American.
In these circumstances, Judge Spiegel ruled that the Board had no duty to follow H.B. 190, since “Title VII trumps state law.” He rejected the Board’s argument that state laws may only be disregarded if they “purport” to discriminate, as well as the contention that adverse impact had to be based on statewide statistics, not just on what had happened in one city. (In part, the reason for the statistical disparity in Cincinnati was that Cincinnati, unlike many other school districts, had been willing to hire minorities with criminal records.)
Because the ruling is on a motion to dismiss, it does not conclusively establish that the Public Schools discriminated, or that the plaintiffs are entitled to relief. They still need to establish valid statistical evidence of a disparate impact and a lack of business necessity. The outcome of those issues is fairly clearly foretold in Judge Spiegel’s order. Employers in states where the legislators have passed laws limiting employment opportinities as collateral sanctions for criminal conduct will now have to worry whether they will be caught between state law and Title VII. Whatever the outcome of a dispute over this issue, the employer will lose a great deal of time and money getting to any definite outcome.