Criminal background check law upheld against challenge by nonteaching employees

A federal district court in Cincinnati has upheld the 2007 legislation* which instituted criminal records checks for all nonteaching school employees in Ohio, and which in some instances required the discharge of employees with very old criminal convictions. The case challenging the 2007 law was filed by two former employees of the Cincinnati Public Schools who were discharged** as required by the new law based on convictions occurring in 1977 and 1983 (felonious assault and drug trafficking). The primary claim in the case was that the legislation had a disparate impact on African-American employees and therefore constituted race discrimination in violation of Title VII of the Civil Rights Act of 1964. Evidence had been offered showing that nine out of the ten nonteaching employees terminated by CPS were African-American.

The court rejected the disparate impact claim because it found that the group selected for analysis was too small. Because the law was written for application to the entire state, as opposed to a specific policy or practice of CPS, the court found that the statistical analysis would need to be applied to the entire state in order to establish a case for disparate impact. The court also suggested, but did not decide, that the law might be justified on the basis of “business necessity” even if the broader statistical analysis was likewise unfavorable.

*HB 190 (eff. 11-14-07), amending ORC 3319.39 and enacting new ORC 3319.391.
**One of the plaintiffs retired early in lieu of discharge.