Ban on Hiring Ex-Convicts Raises Title VII Concerns

Douglas El was only 15 when a jury found him guilty of second-degree murder in 1960.

Although El denied gunning down his 16-year-old victim, he was among several black youths convicted for the gang-related homicide that year. Since serving his three-and-a-half year sentence, El has had three drug convictions, the last one more than 20 years ago.

Believing he had long since paid his debt to society, the 55-year-old African-American applied in January 2000 for a job driving mentally and physically disabled passengers for King Paratransit Services, a now-defunct paratransit provider for the Southeastern Pennsylvania Transportation Authority (SEPTA).

Even though El disclosed his 40-year-old murder conviction on King's employment application, the company hired him. But King fired him a couple of weeks later when a criminal record check turned up the offense.

King admitted the only reason it terminated El was its contract with SEPTA, which imposed a ban against hiring drivers with any previous conviction for a crime of violence or "moral turpitude" or driving under the influence.

El sued under Title VII, claiming that SEPTA's bright-line policy against hiring ex-offenders has a disparately negative impact on African-Americans and Hispanics who are arrested and convicted of crimes at a much higher rate than whites.

"Nationwide, African-Americans account for 12 percent of the population, 27 percent of all arrests and 44 percent of those convicted of felonies," the NAACP noted in its amicus brief in support of El. "To forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation."

High-Stakes Gambling

But SEPTA denied it was discriminating against minorities. What was really at stake, it said, was its clients' right to safety. Hiring convicted violent criminals would amount to "high-stakes gambling with public safety" because it is impossible to predict if an ex-convict will re-offend, SEPTA's lawyers argued.

SEPTA found powerful support for that argument in the example of David DeSouza, a King driver with a prior arrest record who raped an 80-pound customer with cerebral palsy.

SEPTA prevailed. On March 19 the 3rd Circuit Court of Appeals affirmed, albeit reluctantly, the district court decision, which granted SEPTA summary judgment on the basis that the transit authority had met its burden under Title VII to show that its hiring policy was job related and supported by business necessity.

"Though we have reservations about such a policy in the abstract, we affirm here because El did not present any evidence to rebut SEPTA's expert testimony ... rebuttable as it may be," the court wrote. "On this record we have little choice but to conclude that a reasonable juror would necessarily find that SEPTA's policy is consistent with business necessity."

The panel went on to emphasize, however, that the defense's statistical evidence that ex-offenders are likely to commit future crimes was hardly "ironclad" because it only demonstrated high rates of recidivism in the first three years after release. "But what about someone who has been released from prison and violence free for 40 years?" the panel asked. "The Department of Justice statistics do not demonstrate that someone in this position--or anything like it--is likely to recidivate."

The appeals court added El might have proceeded to trial had he brought forth even one expert who could testify, for example, that at some point in time an ex-felon is no more likely to commit a crime than the average citizen, thus countering SEPTA's evidence that even violent offenders who have been crime free for years are at least somewhat more likely than non-offenders to be violent.

Door Open

"Reading the court's decision it seemed as if they were not closing the door on this type of case," suggested El's counsel David Cohen, a partner with Spector, Roseman & Kodroff in Philadelphia. Cohen contends that Title VII demands employers give individualized consideration to the age, nature and job relatedness of each ex-offender's record, rather than branding certain groups of people as permanently unfit for employment.

"We punish [criminals] with the idea that they will have an opportunity to be rehabilitated, and if there are no mechanisms in society to acknowledge the fact of rehabilitation, we are condemning criminals in perpetuity," he argues.

Robert Stroup of the NAACP Legal Defense Fund stressed that the growing number of laws and policies that restrict ex-felons from employment have a "devastating effect" on racial and ethnic minorities as well as on the economy. In addition, he suggests that the court's obvious skepticism about SEPTA's hiring policy is a warning to employers.

"Even with violent crimes, if I were corporate counsel advising my client, I would say, 'We need to draw up a policy that is very narrow and clearly connected to performance of the job,'" he says.

Indeed, the decision does not offer much support for policies that bar ex-offenders from employment despite the outcome of the case. If anything, El v. SEPTA gives a blueprint for pursuing similar cases in the future.

"Often you see in employee handbooks blanket exclusions of 'anyone convicted of a felony' or 'anyone convicted of a crime.' This case reinforces the view that that's not going to fly," says Andrew Slobodien, a partner at Wildman Harrold.

Hiring polices should aim for "a very careful balance" between the safety of clients and employees and the notion that rehabilitated individuals should be permitted to work, says Caroline Austin, a partner at WolfBlock.

"The lesson that employers can take from this case is they are going to have to have some type of proof that the policy doesn't go too far," she says. "It would help if they had some statistical evidence that the goals they are trying to achieve are actually met by the employment policy."

staff Writer

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