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El v. SEPTA - 479 F.3d 232 (3d Cir. 2007)

Rule:

On a motion for summary judgment, if the moving party successfully points to evidence of all of the facts needed to decide the case on the law short of trial, the non-moving party can defeat summary judgment if it nonetheless produces or points to evidence in the record that creates a genuine issue of material fact. The non-moving party cannot rest on mere pleadings or allegations; rather it must point to actual evidence in the record on which a jury could decide an issue of fact its way. 

If a bright-line policy can distinguish between individual applicants that do and do not pose an unacceptable level of risk, then such a policy is consistent with business necessity. Whether a policy can do so is most often a question of fact that the district courts -- and juries -- must resolve in specific cases.

Facts:

King Paratransit Services, Inc. ("King") conditionally hired El to drive paratransit buses. The position involved providing door-to-door and curb-to-curb transportation service 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, among other things, 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. Following the terms of King's subcontract with SEPTA and El's employment offer, King terminated his employment with the murder conviction being their sole reason. El filed a case against SEPTA and King alleging that the employer's hiring policy violated Title VII of the Civil Rights Act of 1964 by discriminating on the basis of race because African Americans and Hispanics were more likely to have a criminal record, they were more likely to run afoul of the policy. In support of its motion for summary judgment, the employer submitted three expert reports with data from the Department of Justice that tracked recidivism of prisoners within three years of their release from prison. Indeed, those data showed relatively high rates of recidivism in those first three years. The United States District Court for the Eastern District of Pennsylvania granted summary judgment to SEPTA and King. El appealed the judgment. 

Issue:

Can an employer disallow hiring based on a violent criminal conviction?

Answer:

Yes.

Conclusion:

The court found that, on the record, it had little choice but to conclude that a reasonable juror would necessarily find that the employer's policy was consistent with business necessity. The court reasoned that the employee chose neither to hire an expert to rebut the employer's experts on the issue of business necessity nor even to depose the employer's experts. Thus, as there was nothing in the record that raised any reasonable credibility question about the employer's expert evidence, the court must conclude that the reasonable juror would believe those experts. Finally, there was no evidence indicating that any alternative policy would have less of a disparate impact.

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