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News: Douglas El vs. SEPTA

Douglas El vs. SEPTA

Third Circuit Rules that Employer's Blanket Exclusion of Applicants wtih Prior Conviction for Violent Crime is Consistent with Business Necessity.

All Pennsylvania employers who use criminal history record checks as part of the hiring process should pay particular attention to a recent court decision.

Plaintiff, Douglas El, filed suit under Title VII of the Civil Rights Act of 1964 claiming that SEPTA unnecessarily disqualifies applicants because of prior criminal convictions - a policy he argues has a “disparate impact” on minorities. On March 19, 2007, the 3rd U.S. Circuit Court of Appeals in El v. SEPTA affirmed the District Court’s entry of summary judgment in favor of SEPTA. The court found that an employer’s blanket exclusion from job consideration of candidates with a prior conviction for a violent crime was consistent with business necessity.

In January 2000, King Paratransit Services, Inc. (“King”) conditionally hired Douglas El to drive paratransit buses. The position involves providing transportation services for people with mental and physical disabilities. King subcontracted with SEPTA to provide paratransit services on SEPTA’s behalf. King’s subcontract with SEPTA disallowed hiring anyone with a violent criminal conviction. Accordingly, among the conditions stipulated in El’s offer was successful completion of a criminal background check.

Within the first few weeks of El’s employment, King discovered that El had a 40-year-old conviction for second-degree murder. The murder took place in a gang-related context when El was 15 years old. Following the terms of King’s subcontract with SEPTA and El’s employment offer, King terminated his employment. According to King personnel, the murder conviction was their sole reason.

El brought a Title VII action alleging employment discrimination based on race. The District Court granted summary judgment for SEPTA, and Mr. El appealed.

He claimed that SEPTA unnecessarily disqualifies applicants because of prior criminal convictions - a policy that he argues has a disparate impact on minority applicants because they are more likely than white applicants to have convictions on their record.

The parties did not dispute that SEPTA’s policy did in fact disparately impact minorities.

But once the plaintiff shows that the challenged policy discriminates against members of a protected class, the defendant can overcome the showing of disparate impact by proving a “manifest relationship” between the policy and job performance. This is known as the “business necessity” defense and it serves as an employer’s only means of defeating a Title VII claim when its employment policy has a discriminatory effect.

Employers must show that a discriminatory hiring policy accurately - but not perfectly -ascertains an applicant’s ability to successfully perform the job in question. Here, however, the hiring policy has nothing to do with the applicant’s ability to drive a paratransit bus. Rather, it seeks to exclude applicants who, while able to drive a bus, pose too much of a risk of potential harm to the passengers to be trusted with the job.

Successful performance of the job in the usual sense is not at issue. This case deals with the risk that an applicant will endanger the employer’s patrons.

The court concluded that Title VII requires that the policy under review accurately distinguishes between applicants that pose an unacceptable level of risk and those that do not. If it does, than such a policy is consistent with business necessity.

SEPTA produced unrebutted expert testimony that individuals with a prior conviction for violent crime presented a higher risk for violent behavior than the general population.

Given the sensitive nature of the paratransit positions, the court ruled that SEPTA’s bright-line policy was consistent with business necessity and ruled against plaintiff El by affirm


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