Posts Tagged ‘School District’

The recent case of Waldon v. Cincinnati Public Schools, before the Southern District of Ohio, exemplifies the frustration many employers might be feeling over the use of criminal background checks.  For those not in the know, criminal background checks spawn a host of issues.  For example, if you don’t use the checks, will you be sued for negligent hiring?; or if you use the criminal background checks will you be sued for discrimination? It’s enough to make your head spin, and as evidenced below, bright-line rules regarding the use of criminal background checks, simply don’t work.

In the case of Waldon, the Ohio legislature amended a state law to require criminal background checks of all current public school employees, including those not responsible for the care, custody, or control of children and to terminate any employee convicted of any of a certain crimes, no matter how far in the past the crime may have occurred and no matter how little the crime related to the present readiness of the particular employee to provide services safely and with excellence.

In seemingly earnest compliance with the state law, the Cincinnati Public Schools terminated ten employees with criminal convictions based on the state law mandate.  Nine of the ten employees were African American.  Two of the fired employees, Waldon and Britton, sued the school district alleging that the state law had a racially discriminatory impact on African Americans in violation of  Title VII of the 1964 Civil Rights Act and Ohio state law.

Undoubtedly, the broad language of the state law that mandated the termination of employees (even those who had no contact with children) for certain convictions no matter how far in the past and regardless of how the crime related to the employee’s ability to perform his/or her job, would produce absurd results.  And it did.  For example, Walton, one of the terminated employees, had been found guilty of felonious assault in 1977 and incarcerated for two years before the school district’s civil service office wrote in support of his parole and offered him employment in 1980.  For nearly 30 years Waldon worked without incident for the school district before he was terminated from his position as a systems monitor based on his decades old conviction.  Moreover, during his tenure with the school district, he never had contact with children.  Britton, the other plaintiff, was convicted in 1983 for acting as a go-between in the purchase and sale of $5 worth of marijuana.  Despite this conviction, she had worked for the school district as an instructional assistant for 18 years without incident before she was terminated based on her decades old and relatively minor conviction.

In Waldon, the court found that the plaintiffs presented sufficient facts to support their disparate impact claims under Title VII and Ohio state law because the state law disproportionately affected African Americans.  Moreover, the school district failed to demonstrate a business necessity for following the state law requiring the discharge of employees of convicted of certain crimes.

Although the school district argued that the court should dismiss the complaint because the school district merely followed state law in firing Waldon and Britton, in a harsh statement for employers, the court stated that compliance with state law is no defense because a violation is a violation.  A state law cannot trump the purpose of Title VII.

In the Waldon case, it mattered little that the school district was just following the state law and did not intend to discriminate because intent is irrelevant in disparate impact cases where the courts look at whether facially neutral employment practices have a disproportionately negative effect on a certain protected group that cannot be justified by “business necessity.”  In this case, the school district could not show that the plaintiffs posed an obvious risk to school children based on their past convictions and therefore could not establish a “business necessity.”

The court unsympathetically concluded that once the school district saw that nine of the ten employees being fired were African American, it was not compelled to follow the state law because Title VII trumps state mandates, and that the school district should have raised questions with the state board of education regarding the disparity.

This is a harsh case for employers because the court makes it clear that employers cannot blindly rely on state law mandates regarding the use of criminal background checks.  Rather, employers must evaluate whether seemingly neutral state law mandates have a discriminatory impact.  The employment and labor law attorneys at Harmon & Davies, P.C. are here to navigate employers through these sometimes treacherous waters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Several weeks ago, in the case of Covington v. Int’l Ass’n of Approved Basketball Officials, the Third Circuit held that a female high school basketball referee in New Jersey may pursue a Title VII sex discrimination claim against three defendants related to her alleged exclusion from officiating boys’ basketball games.

In short, the female referee sued seven defendants in federal court, including Hamilton Township School District, the New Jersey State Interscholastic Athletic Association (NJSIAA), and Board 193 of the International Association of Approved Basketball Officials, alleging that the defendants engaged in unlawful sex discrimination by excluding her from officiating boys’ high school varsity basketball games.   Although she had refereed for more than 10 years, the referee claimed that she had not been assigned to officiate boys’ regular season games because of Board 193’s policy of discriminating against female officials.  Although no defendant admitted to having a policy of excluding women from officiating boys’ games, the referee alleged a pattern and practice of sex discrimination

The U.S. District Court of the District of New Jersey dismissed the referee’s complaint on the ground that she had not adequately alleged facts sufficient to establish the employer-employee relationship necessary to hold any of the named defendants liable under Title VII.  The referee appealed this dismissal to the Third Circuit where the Third Circuit reversed the lower court’s decision and chastised it for not giving more serious regard to a federal district court opinion in Pennsylvania that had upheld a sex discrimination jury verdict for a female basketball referee who had been excluded from officiating boys’ games under similar circumstances.  In other words, there was existing case law that the lower court should have paid closer attention to.

Interestingly, the defendants unsuccessfully argued that they were not covered by Title VII on the theory that they could not be considered employers.  The Third Circuit rejected this argument finding that the school district and the athletic association could be fairly identified as the referee’s employers under Title VII.  The court also found that the referee plausibly alleged that Board 193 could be liable as an “employment agency” for supplying high school basketball referees to the school district.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Labor & Employment, Sex discrimination | No Comments »

The U.S. District Court of the Middle District of Pennsylvania recently held that a first-grade teacher sufficiently stated a claim against Red Lion Area School District for violating her right Family Medical Leave Act (“FMLA”) rights.

The case involves a teacher at Clearview Elementary School who suffers from Chron’s disease, a condition that sometimes caused her to arrive late to work.  In 2011, the teacher requested an accommodation for her condition and the HR director asked the teacher to have her physician fill out a FMLA form to determine her eligibility.  The teacher completed the forms and returned them to the HR director but he allegedly failed to further address her FMLA eligibility.  Thereafter, the teacher received her first unsatisfactory performance review in her five year tenure with the school and she was suspended.

Several months later, the teacher again requested an accommodation and a determination of her FMLA eligibility.  The school district decided to accommodate the teacher by permitting her to inform the school of required morning accommodations for flare-ups associated with her medical condition.  Nonetheless, despite granting the teacher this accommodation, the School District criticized her for using the accommodation and disciplined her for late arrivals, tardiness, and absences.  In response, the teacher once again submitted FMLA forms, but was never informed of her rights regarding FMLA leave.

Next, according to the teacher, the school district began to scrutinize her classroom protocols and teaching methods.  In early 2012, after the teacher’s attorney demanded that the school district grant the teacher’s leave request, intermittent FMLA leave was provided.  A month later, the teacher experienced another flare-up in her condition.  When she arrived to school late, she was allegedly embarrassed by the school principal for using the morning accommodation and intermittent FMLA leave and was suspended for two days without pay.  Moreover, the teacher alleges that the school principal and HR director told other employees about her Crohn’s disease and absences.

The teacher filed suit against the school district, the HR director and the principal alleging, among other things, interference with her FMLA rights and retaliation for exercising her FMLA rights.  The HR director and principal moved to dismiss based on qualified immunity from FMLA liability, but the Middle District of Pennsylvania rejected the principal’s and HR director’s arguments regarding qualified immunity on the basis that government officials are protected from liability only if their conduct does not violate clearly established rights.  Here, the officials conceded that the conduct alleged could show a violation of the FMLA.


The court agreed that the teacher sufficiently stated a claim for interference under the FMLA because the officials failed to give her proper notice of her eligibility for leave, placed unreasonable restrictions on her use of leave, discouraged her from using leave by disciplining her for absences, disclosed to co-workers the occasions where she used leave, and did not communicate properly the status of her FMLA requests.  Moreover, the court noted that the teacher had alleged that she was subjected to discipline in close temporal proximity to her request for FMLA leave.

The court went on to say that “it would be a misuse of qualified immunity to apply the doctrine [of qualified immunity] to insulate from suit public employees who, as is the case here, do not dispute that their acts (if proven) would violate a clearly established right but instead only take exception to liability on the basis that responsibility for their conduct should be borne by their own employer alone.”

According to the court, because the teacher’s FMLA rights were clearly established, the officials should have known that the law required them to communicate with her about her rights, and to grant her FMLA leave if medically necessary.

To avoid adverse results such as this, employers should adequately train their officials regarding FMLA obligations.  The attorneys at Harmon & Davies are available to provide such training.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Posted in FMLA, Labor & Employment | No Comments »