What should an employer do if a state employment law conflicts with Title VII?

A recent decision issued in Ohio, Waldon v. Cincinnati Public Schools, No. 1:12-CV-00677 (S.D. Ohio Apr. 23, 2013), highlights the unfortunate circumstance when a state employment law contradicts a federal employment law. In that case, the employer (a school district) was obligated by Ohio law to perform a criminal background check on all current employees and was not permitted to employ anyone who committed any of the crimes specified by the law regardless of how long ago the crime occurred or the relation, if any, to the employee’s position. On this basis, the employer performed the background check and terminated the employment of 10 employees (9 of which were African American). Two of those employees sued alleging racial disparate impact in violation of Title VII. The employer sought to have the case dismissed on the basis that it had been following state law. Although the case remains pending, this decision demonstrates that following state law is not a defense to a claim that the employer violated Title VII as Title VII pre-empts the state law.