Gregory Waldon had been a hard working, valued employee of the Cincinnati Public School system (CPS) for nearly 30 years. Mr. Waldon, who is African American, was looking forward to retiring in a few years with full benefits and spending time with his wife, children and grandchildren. But his supervisors at CPS told him he had to submit to a criminal background check.
Mr. Waldon was not concerned because, although he had a 30+ year-old assault conviction, he had disclosed the conviction to CPS when he was hired in 1980. In 2008, CPS fired Mr. Waldon, despite having been an exemplary employee for decades and despite having been completely frank about the conviction before being hired.
Eartha Britton, also African American, had been a valued teacher's assistant for 18 years when CPS fired her for a single 1983 conviction for a minor drug offense involving $5 worth of marijuana. Like Mr. Waldon, Ms. Britton disclosed her conviction before she was hired. Ms. Britton was terminated even though her conviction had been expunged.
Of the ten CPS employees who lost their jobs because of CPS’s implementation of the Ohio law, all but one were African American.
CPS claims that these firings were necessary to comply with a 2007 law passed by Ohio that greatly changed how criminal background checks for public school workers are conducted. Prior to the 2007 law, broad criminal background checks were only required for licensed positions, such as teachers and counselors; the new law required criminal background checks for all school employees. The law included a long list of criminal offenses that automatically disqualified an individual for employment in public schools, regardless of how old or minor the offense or employee’s performance or length of tenure.
After their terminations, Mr. Waldon and Ms. Britton filed suit in federal court. In their complaint, they argue that the criminal background check policy—as applied by their former employer CPS—violates federal and state anti-discrimination law because it has a disproportionate impact on African Americans and it is not justified by any legitimate business rationale.
Their arguments are also supported by recent enforcement guidance issued by the United States Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing antidiscrimination law in employment. In its guidance, the EEOC made clear that employers violate federal law when they have criminal records policies that disproportionately screen out a protected group, such as racial minorities, and they do not establish that the policies are “job related for the positions in question and consistent with business necessity.”
After Mr. Waldon and Ms. Britton filed their complaint, CPS filed a motion to dismiss the lawsuit on the grounds that it was merely following Ohio state law. The court rejected this argument. In its decision , the court held that federal anti-discrimination law “trumps state mandates.” The court also noted that both plaintiffs “were valuable and respected employees” who “posed no obvious risk due to their past convictions.”
In October 2013, LDF joined the legal team representing Mr. Waldon and Ms. Britton. LDF recognizes that school districts are legally justified in considering criminal background information when evaluating both current and potential employees to ensure the safety of students. Yet, we argue that this policy went far beyond ensuring safety and, instead, led to unlawful denial of employment for African American employees. And, as the district court has already stated, an employer’s legal obligation to provide equal opportunity regardless of race as required by federal anti-discrimination law trumps compliance with state law.
For Mr. Waldon and Ms. Britton, the policy imposed a new punishment: the inability to earn a living, for no justified reason, long after they paid their debt to society and have proven themselves to be exemplary workers and contributing community members.