El v. Southeastern Pennsylvania Transportation Authority Brief of Amicus Curiae in Support of Plaintiff-Appellant Seeking Reversal of the District Court's Order

    No. 05-3857

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

DOUGLAS EL, 

PLAINTIFF-APPELLANT

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

DEFENDANT-APPELLEE

On Appeal from the United States District Court 
for the Eastern District of Pennsylvania

BRIEF OF AMICUS CURIAE
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

IN SUPPORT OF PLAINTIFF-APPELLANT SEEKING REVERSAL OF 
THE DISTRICT COURT’S ORDER.

Th e o d o r e  M . Sh a w  
Director-Counsel and President 

N o r m a n  J. C h a c h k in  
R o b e r t  H. S t r o u p  
M e l a n c a  D. C l a r k  
NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200 Phone 
(212) 226-7592 Fax

Attorneys for Amicus Curiae
The NAACP Legal Defense and Educational Fund, Inc.



STATEMENT OF CORPORATE DISCLOSURE

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus 

curiae fdes the following statement of disclosure: The NAACP Legal Defense & 

Educational Fund, Inc. is a nonprofit 501(c)(3) corporation and is not a publically 

held company that issues stock.

i



TABLE OF CONTENTS

STATEMENT OF CORPORATE DISCLOSURE................................................... i

Table of Authorities................   iii

Interest of Amicus ....................................................................................................... .1

ARGUMENT..................................................................................................................2

Introduction......................................................................................................... 2

I. TITLE VII PROHIBITS THE RACIALLY DISCRIMINATORY
USE OF CRIMINAL HISTORY INFORMATION.............................. 6

II. THE PROPER APPLICATION OF TITLE VIES BUSINESS
NECESSITY REQUIREMENT ENSURES THAT EMPLOYERS 
DO NOT MAKE HIRING DECISIONS ON THE BASIS OF 
PREJUDICE, STEREOTYPES AND INVIDIOUS 
DISCRIMINATION................................................................................ 10

III. INDIVIDUALIZED CONSIDERATION OF APPLICANTS ’
CRIMINAL HISTORY INFORMATION IS A FEASIBLE 
EMPLOYMENT POLICY FOR SEPTA AND ITS AGENTS.........16

CONCLUSION....................................................   18

CERTIFICATIONS...... .............................................................................................. 19

ii



TABLE OF AUTHORITIES

FEDERAL CASES

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ..........................................................................  1,11,16

Banks v. City o f Albany,
953 F. Supp. 28 (N.D.N.Y. 1997).................................................................  14

Butts v. Nichols,
381 F. Supp. 573 (S.D. Iowa 1974).............................................. ................  12

Diaz v. Pan America World Airways, Inc.,
442 F.2d 385 (5th Cir. 1971)..........................................................................10

In re Employment Discrimination Litigation Against the State o f Ala.,
198 F.3d 1305 (11th Cir. 1999), reh ’g en banc denied,
212 F.3d 602 (2000) .......................................................................................... 7

Fernandez v. Wynn Oil Co.,
653 F.2d 1273 (9th Cir. 1981)........................................................................10

Green v. Mo. Pac. R.R. Co.,
523 F.2d 1290 (8th Cir. 1975).........................................................  11, 12, 15

Gregory v. Litton Systems, Inc.,
316 F. Supp.'401 (C.D. Cal. 1970), affd, 472 F.2d 631
(9th Cir. 1 972 ).................................................................................................  12

Griggs v. Duke Power Co.,
401 U.S. 424 (1971) ....................................................................................  1,6

Hunter v. Underwood,
471 U.S. 222 (1985) .......................................................................................... 8

iii



Lanning v. SEPTA,
181 F.3d 478 (3d Cir. 1999), cert, denied, 528 U.S. 1131 (2000), after 
remand, 308 F.3d 286 (3d Cir. 2 0 0 2 ) .....................................................15, 16

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ......................................................................................  10

STATE CASES

Dincher v. Great Atlantic & Pacific Tea Co.,
51 A.2d 710 (Pa. 1947)..........   17

Ford v. Gildin,
613 N.Y.S.2d 139(1994) ..............................................................................  17

Sec V o f Revenue v. John's Vending Corp.,
309 A.2d 358 (Pa. 1 9 7 2 )....................................................................................3

STATUTES

1 Pa. Cons. Stat §2310...............................................................................................17

42 Pa. Cons. Stat §8521 ............................................................................................. 17

20 U.S.C. 1091(r)(l) (2000) ........................................................................................ 2

21 U.S.C. 862a (2000)...................................................................................................2

Fla. Stat. Ann. §768.096 ..........................................................................................  17

OTHER AUTHORITIES

T h o m a s  B. B o n z c a r , U.S. D e p ’t  o f  Ju s t ic e , B u r e a u  o f  Ju s t ic e  S t a t is t ic s , 
P r e v a l e n c e  o f  Im p r is o n m e n t  in  t h e  U.S. P o p u l a t io n  
1974-2001 (2003) ...............................................................................................5

President George W. Bush, State of the Union Address (Jan. 20, 2 0 0 4 )...............3

IV



Alfred Blumstein, Racial Disproportionality ofU.S. Prison Populations Revisited,
64 U. COLO. L. Rev . 743 (1993)......................................................................5

Council of State Governments Re-Entry Policy Council, Report o f the Re- 
Entry Policy Council, Charting the Safe and Successful Return o f Prisoners 
to the Community (2005)................................................................................  3

Corrinne Carey, No Second Chance: People With Criminal Records Denied
Access to Public Housing, HUMAN RIGHTS WATCH (2004)......................... 2

Robert D. Crutchfield & Susan. R. Pitchford, Work and Crime: The Effects o f
Labor Stratification, 16 SOCIAL FORCES 93 (1997)......................................3

EEOC, Policy Statement on the Issue o f Conviction Records Under Title VII o f the 
Civil Rights Act o f  1964, II EEOC Compliance Manual § 604 
(Feb. 4, 1987) .................................................................................................  12

Michael Ezell & Lawrence Cohen, Desisting From Crime (2005) ..........  13

Federal Bureau of Investigation, Uniform Crime Reports, Crime in the 
United States (2003) ...................................................................................... 5

Miles D. Harer, Recidivism among Federal Prisoners released in 1987,
46 Journal of Correctional Education 98 (1995).............................  12

July 12, 2005 Memorandum and Order (El v. SEPTA) .........................  6,11,15,16

John Laub & Robert Sampson, Shared Beginnings, Divergent
Lives (2003) ...................................................................................................  13

Paige M. Harrison & Allen J. Beck, U.S. Dep’t of Justice, Bureau of
Justice Statistics, Prisoners in 2003 (2004) ............................................4

Jeffrey K. Liker, Wage and Status Effects for Employment on Affective Well­
being among Exfelons, 47 AMERICAN SOCIOLOGICAL 
Review 264 (1982)............................................................................................ 2

V



Marc Mauer, Race t o  Incarcerate (1999) 4

Thomas Meisenhelder, An Exploratory Study of Exiting From Criminal Careers,
15 Criminology 319 (1 9 7 7 ).........................................................................  12

Devah Pager, The Mark o f a Criminal Record,
108 Am . J. Soc. 937 (2003) ........................................................................  5,8

SENTENCING P r o je c t , Felony Disenfranchisement Laws in the United States
(2005) .................................................................................................................  2

Christopher Uggen, Work as a Turning Point in the Life Course o f  criminals: A 
Duration Model o f  Age, Employment, and Recidivism, 65 AMERICAN 
Sociological Review 529 (2000) .............................................................  12

U.S. Dep’t of Justice, Bureau of Justice Statistics, Correctional
Populations in the United States 1998 (2002) ........................................4

Ann Dryden Witte & Helen Tauchen, Work and Crime: An Exploration 
Using Panel Data (Nat’l Bureau of Econ. Research, Working Paper No. 
4794, 1 9 9 4 )......................................................................................................... 3

Paul von Zielbauer, Study Shows More Job Offers for Ex-Convicts
Who are White, NY Times, July 17, 2005, at B1 .......................................... 9

VI



Interest of Amicus1

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) was 

incorporated in 1939 under the laws of New York State to provide legal assistance 

to black persons in securing their constitutional rights. For over six decades, LDF 

has appeared as counsel of record or amicus curiae in numerous cases involving 

race discrimination before the Supreme Court, the Courts of Appeals, and the 

federal District Courts. Since its passage 40 years ago, LDF has worked 

ceaselessly to enforce Title VII, litigating on behalf of indi vidual plaintiffs and 

plaintiff classes against private and public employers to challenge discriminatory 

employment practices. Among the hundreds of Title VII cases LDF has litigated 

are Griggs v. Duke Power Co., 401 U.S. 424 (1971), and Albemarle Paper Co. v. 

Moody, 422 U.S. 405 (1975), whose adverse impact holdings were ultimately 

codified in the Civil Rights Act of 1991. Given its expertise, LDF believes its 

perspective would be helpful to this Court in resolving the issues presented in this 

case.

'All parties have consented to filing of this brief. Consent was provided by Plaintiff- 
Appellant’s counsel, David Cohen, and Defendant-Appellee’s counsel, Robert Jaurin, via 
telephonic conversations with Amicus Curiae counsel, Melanca Clark, on December 12th, 2005.

1



ARGUMENT

Introduction

The use of criminal record information in hiring policies is of critical 

importance to African Americans given the persistence of racial disparities at all 

stages of the criminal justice system, and the profound impact of collateral civil 

sanctions on the ability of former offenders to reintegrate and become productive 

members of society. These collateral civil sanctions can affect an individual’s 

right to vote,2 acquire housing,3 receive public assistance4 and student loans,5 and 

as evidenced in this case, seek gainful employment.

In light of the close nexus between gainful employment and rehabilitation 

for individuals with prior criminal histories,6 policy makers, courts, and the

2 Thirty-six states impose some form of restriction (ranging from time-limited ban to 
permanent disfranchisment) on the voting rights of individuals with a felony record. See 
SENTENCING Project, Felony Disenfranchisement Laws in the United States (2005), at 
http://www.sentencingproject.org/pdfs/1046.pdf.

3 See, e.g., Corrinne Carey, No Second Chance: People With Criminal Records Denied 
Access to Public Housing, HUMAN RIGHTS WATCH (2004), available at 
http://hrw.org/reports/2004/usal 104/.

4 See 21 U.S.C. 862a (2000) (authorizing imposition of lifetime ban on receipt of cash 
benefits or food stamps for individuals with drug convictions).

5 See 20 U.S.C. 1091 (r)( 1) (2000) (codifying the 1998 amendment to the Higher 
Education Act of 1965 restricting federal financial aid and guaranteed loans for individuals with 
drug convictions).

6 See, e.g., Jeffrey K. Liker, Wage and Status Effects fo r  Employment on Affective Well­
being among Exfelons, 47 AMERICAN SOCIOLOGICAL REVIEW 264-283 (1982); ANN DRYDEN

2

http://www.sentencingproject.org/pdfs/1046.pdf
http://hrw.org/reports/2004/usal


Commonwealth of Pennsylvania itself have recognized that public policy favors 

avoiding “unwarranted stigmatization of and unreasonable restrictions upon 

former offenders through the imposition of employment barriers.” Sec y  o f  

Revenue v. John’s Vending Corp., 309 A.2d 358, 362 (Pa. 1972) (“This State in 

recent years has been unalterably committed to rehabilitation of those persons who 

have been convicted of criminal offenses. 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.”); see 

also President George W. Bush, State of the Union Address (Jan. 20, 2004), at 

http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html (“We know 

from experience that if [former prisoners] can't find work, or a home, or help, they 

are much more likely to commit more crimes and return to prison . . . .  America is 

the land of the second chance, and when the gates of the prison open, the path 

ahead should lead to a better life.”); c f  C o u n c il  o f  St a t e  G o v e r n m e n t s  R e - 

En t r y  POLICY C o u n c il , Report o f the Re-Entry Policy Council, Charting the

Witte & Helen Tauchen, Work and Crime: An Exploration Using Panel Data (Nat’l 
Bureau ofEcon. Research, Working Paper No. 4794, 1994); Robert D. Crutchfield & Susan. R. 
Pitchford, Work and Crime: The Effects o f Labor Stratification, 76 SOCIAL FORCES 93-118 
(1997).

3

http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html


Safe and Successful Return o f Prisoners to the Community (2005), available at 

http://www.reentrypolicy.org/report/report-pdf.php (“Americans do not “recognize 

the extent to which policies set up a person released from prison for failure, with 

little hope of redemption”).

The issue of rehabilitation of former offenders has gamed national attention 

due to the historically unprecedented number of Americans who have had contact 

with the criminal justice system. Incarceration rates have more than tripled since 

the 1980s. U.S. D e p ’t  o f  J u s t ic e , B u r e a u  o f  Ju s t ic e  St a t is t ic s , 

C o r r e c t io n a l  P o p u l a t io n s  in  tfie U n it e d  St a t e s  1998 (2002); P a ig e  M. 

H a r r is o n  &  A l l e n  J. B e c k , U.S. D e p ’t  o f  Ju s t ic e , B u r e a u  o f  J u s t ic e  

St a t is t ic s , P r is o n e r s  in  2003 (2004). As a result of this increase, the United 

States currently constitutes approximately five percent of the world's population 

but holds 25% of the world's prison population. M a r c  M a u e r , Ra c e  to  

INCARCERATE 15-41 (1999). A disproportionate number of the two million people 

in American jails and prisons are racial minorities. African Americans are not 

only more likely to be arrested than whites, but are also more likely to be charged 

once arrested, and are more likely to be convicted and incarcerated when charged.

4

http://www.reentrypolicy.org/report/report-pdf.php


Id. at 118-141.7 Nationwide, African Americans account for 12% of the 

population, 27% of all arrests, and 44% of those convicted of felonies. F e d e r a l  

B u r e a u  o f  In v e s t ig a t io n , U n if o r m  C r im e  R e p o r t s , C r im e  in  t h e  U n it e d  

St a t e s  (2003). All told, at least 12 million Americans possess a felony record, 

approximately eight percent of the working-age population. Devah Pager, The 

Mark o f a Criminal Record, 108 A m . J. So c . 937, 938 (2003). For African- 

American men who have a 33% likelihood of incarceration during their lifetime, 

this figure is undoubtedly higher. T h o m a s  B . B o n z c a r , U.S. D e p ’t  o f  J u s t ic e , 

B u r e a u  o f  Ju s t ic e  St a t is t ic s , P r e v a l e n c e  o f  Im p r is o n m e n t  in  t h e  U.S. 

P o p u l a t io n  1974-2001 (2003).

In the face of these disparities it is evident that almost any employment 

policy excluding individuals with criminal records is likely, as has been shown in 

this case, to have a disparate impact on African Americans. Title VII’s 

requirement that job exclusions based on possession of a criminal record be job- 

related and consistent with business necessity ensures that employers do not 

maintain such policies to advance or perpetuate illegal racial discrimination.

7 See also Alfred Blumstein, Racial Disproportionality o f U.S. Prison Populations 
Revisited, 64 U. Colo. L. Rev . 743, 754 (1993) (discussing racial disparities in the criminal 
justice system and noting that high rates of arrest of African Americans for drug-related offenses 
are unlikely to be indicative of higher rates of drug offending as compared to the general 
population).

5



Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). In this case, because the 

district court did not properly apply the business justification standard, its ruling 

granting summary judgment in favor of SEPTA should be reversed.

I. TITLE VII PROHIBITS THE RACIALLY DISCRIMINATORY USE
OF CRIMINAL HISTORY INFORMATION.

Despite clear evidence of the disparate impact that SEPTA’s employment 

policy has on African Americans, and SEPTA’s ability to consider, on an 

individualized basis, the criminal histories of its paratransit drivers, SEPTA insists 

on imposing an unduly restrictive hiring policy excluding applicants with any 

felony conviction or enumerated misdemeanor conviction within the prior seven 

years, and any felony or misdemeanor conviction (irrespective of the time of the 

offense) involving a crime of moral turpitude or violence against any person.8 

Title VII prohibits such a course unless the policy in use by the employer is both

8 Plaintiff asserts that the employment policy to which he was subject imposed a per se 
bar on the hiring of any individuals with any type of criminal conviction for the paratransit driver 
position. See Plaintiff s Appellate Br. at 14-21. The District Court, however, assumed, without 
acknowledging the conflicting evidence in the record, that SEPTA applied a policy excluding all 
individuals with any history of a felony or misdemeanor for a crime of violence or moral 
turpitude, and individuals having any felony or specified misdemeanor conviction occurring in 
the prior seven years. See July 12, 2005 Memorandum and Order (A18) [hereinafter “Order”]. 
(All references to the Appellate Record are in the form of “(A_)”, referring to the designated 
pages of the Appellate Appendix filed by Plaintiff-Appellant.) While a dispute between the 
parties as to what employment policy applied appears to raise a triable issue of material fact 
warranting reversal of the district court’s decision, amicus believes that the District Court’s grant 
of summary judgment was in error even if SEPTA is found to have utilized the SEPTA 
employment policy formulation described by the District Court. The arguments in this brief are 
thus addressed to the District Court’s formulation of SEPTA’s employment policy.

6



job-related and consistent with business necessity. The rationale behind Title 

VII’s business necessity requirement is clear, both in the legislative history and the 

subsequent case law interpreting the ambit of the statute’s protection: to eliminate 

invidious racial and other illegal discrimination in employment decisions.

While it is well established that a plaintiff need not show a subjective 

discriminatory motive on the part of an employer to prevail in a Title VII case, 

such motives are not divorced from a Title VII inquiry, even where an 

employment policy’s disparate impact is at issue. Requiring an employer to prove 

that its employment policy is both job-related and consistent with business 

necessity ensures that employment decisions have not been made on the basis of 

racial prejudice and stereotypes, either conscious or subconscious. As the 11th 

Circuit has noted, in the face of evidence of disparate impact of its policy, if an 

employer cannot demonstrate that the challenged practice is job- related “what 

explanation can there be for the employer’s continued use of the discriminatory 

practice other than that some invidious purpose is probably at work?” In re 

Employment Discrimination Litig. Against the State o f Ala., 198 F.3d 1305, 1321 - 

22 (11th Cir. 1999), reh ’g  en banc denied, 212 F.3d 602 (2000).

In our nation’s history, criminal history information has been used as a 

means to discriminate against African Americans. For example, state legislatures

7



in both the north and south tailored their felon disffanchisment laws to require the 

loss of voting rights only for those offenses committed mostly by African 

Americans, in order to disfranchise the African-American electorate. In Hunter v. 

Underwood, 471 U.S. 222 (1985), the Supreme Court found that a disfranchisment 

clause under the Alabama constitution excluding from voting all individuals with 

misdemeanors involving crimes of moral turpitude, had been adopted by the 

Alabama legislature for racially invidious purposes, in spite of its racially neutral 

language. Citing evidence that the crimes enumerated in the statute were ones 

thought to be more commonly committed by African Americans, the court 

invalidated the clause, as such evidence revealed that the clause’s enactment was 

“motivated by a desire to discriminate against blacks on account of race and the 

section continues to this day to have that effect.” Id. at 233.

More recently, studies have shown the persistence of illegal employment 

discrimination against African Americans and the connection between such 

invidious discrimination and the use of criminal records in hiring decisions. A 

study performed in Madison, Wisconsin and then replicated in New York City 

tested the effect of race and criminal history on the number of “call-backs” 

received for entry-level employment positions by sending black and white testers 

with matched qualifications to job interviews. Devah Pager, The Mark o f a

8



Criminal Record, 108 Am . J. SOC. 937 (2003); Paul von Zielbauer, Study Shows 

More Job Offers fo r  Ex-Convicts Who are White, NY TIMES, July 17, 2005, at B1 

(describing New York study). The study found not only that whites were three 

times more likely to get a call-back than similarly credentialed African Americans, 

but also that whites with criminal records were still more likely to receive a call­

back than African-American applicants without criminal records. Indeed, race 

compounded the effect of having a record: white men with a criminal record were 

half as likely to receive call-backs as white men without a criminal record, black 

men with a criminal record were only a third as likely to receive a call back as 

black men without a criminal record. The negative impact of having a criminal 

record on black applicants, therefore, was greater than it was for whites. One 

plausible explanation for this phenomenon is that the presence of a criminal record 

allows employers to justify decision-making on the basis of stereotypes and 

prejudice already held against African-American applicants.

Although some progress has been made, it is clear that the problem of 

employment discrimination that Title VII was enacted to address has not been 

eradicated. The fact that such discrimination may rear its head under the guise of 

an employment policy targeted at individuals with criminal records is not reason to 

eschew application of Title VII’s clear standards.

9



II. THE PROPER APPLICATION OF TITLE VII’S BUSINESS
NECESSITY REQUIREMENT ENSURES THAT EMPLOYERS DO 
NOT MAKE HIRING DECISIONS ON THE BASIS OF PREJUDICE, 
STEREOTYPES AND INVIDIOUS DISCRIMINATION.

Title VII was enacted, in large part, to prevent employment decisions based

on racial prejudice and stereotypes, and to require instead that an employer focus

on individuals’ qualifications and abilities to perform the job in question. See

Price Waterhouse v. Hopkins, 490 U.S. 228, 243-44 (1989). Under this

framework, when considering an applicant’s criminal history in determining job

suitability, an employer should only consider the extent that the individual’s

particular conviction relates to the specific responsibilities of the job applied for.

Without this requirement an employer would be free to rely on stereotypes to

justify its policy of excluding applicants with a criminal history, irrespective of the

disproportionate burden such a policy imposed on African Americans, and without

regard to whether the policy actually resulted in a safer work environment.9

Accordingly, rather than rely on overly broad generalizations about ex-

offenders as a class, Title VII requires that SEPTA present empirically validated

9 The elderly and disabled, reacting to the highly charged rhetoric surrounding the 
prevalence of crime, might feel safer with the policy SEPTA has in place, but there is no 
evidence that they will actually be safer. In any event, customers’ preferences do not provide a 
business justification for a discriminatory policy. See, e.g., Diaz v. Pan Am. World Airways, Inc., 
442 F.2d 385, 389 (5th Cir. 1971); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 
1981).

10



proof that there is a connection between a specific conviction and current 

behavior to support a business justification defense of its discriminatory hiring 

policy. See Green v. Mo. Pac. R.R. Co., 523 F.2d 1290, 1298 (8th Cir. 1975) 

(employment policy excluding individuals with criminal records found to violate 

Title VII where employer “had not empirically validated its policy with respect to 

conviction records”). Heightened scrutiny of the proof offered by defendant in 

support of a business justification is warranted where the employer has developed 

data supporting its business justification in response to a law suit. See Albemarle 

Paper Co. v. Moody, 422 U.S. 405, 433 n.32 (1975) (courts should “examine with 

great care” studies validating discriminatory employment practices when prepared 

in anticipation of litigation).

In this case the district court failed to hold SEPTA to Title VIPs rigorous 

standards. The court allowed SEPTA to defend its policy on the basis of its 

assertion that “former prisoners are much more likely to engage in criminal 

conduct (subsequent to release) than the ‘typical’ adult in the general population,” 

Order (A 19) (citing report of Dr. Griffen), and the introduction of evidence 

showing recidivism rates for federal and state prisoners over a three year period.

If SEPTA’s reliance on such generalized recidivism statistics as a proxy for 

plaintiff s propensity to commit a crime is sufficient to support business necessity,

11



any employment policy which excludes individuals with criminal records, no 

matter how broad, would similarly be justified. Blanket exclusions, however, are 

clearly violative of Title VII. See Gregory v. Litton Systems, Inc., 316 F. Supp. 401 

(C.D. Cal. 1970), a ffd , 472 F.2d 631 (9th Cir. 1972); Green, 523 F.2d at 1296; c f  

Butts v. Nichols, 381 F. Supp. 573 (S.D. Iowa 1974) (finding that blanket ban 

excluding individuals with felony convictions from civil service positions violated 

the Equal Protection and Due Process Clauses of the United States Constitution).

Using recidivism rates of an undifferentiated group of individuals with 

criminal records to support a conclusion that all are equally likely to commit 

another crime assumes an ability to predict behavior that even defendant’s experts 

disavow.10 By permitting SEPTA to rely on such statistics the district court 

disregarded the significance of highly individual factors which clearly bear on an 

individual’s propensity to recidivate, such as evidence of rehabilitation, as well as 

the nature of the crime and the time passed since the commission of the offense, 

factors required to be considered under the EEOC’s policy guidance.11

10 See Sosbey Report (A t9); Blumstein Report (A953).

11 See EEOC, Policy Statement on the Issue o f Conviction Records Under Title VII o f  the 
Civil Rights Act o f  1964, II EEOC Compliance Manual § 604 (Feb. 4, 1987); see also 
Christopher Uggen, Work as a Turning Point in the Life Course o f  criminals: A Duration Model 
o f Age, Employment, and Recidivism, 65 AMERICAN SOCIOLOGICAL REVIEW, 529-546 (2000); 
Miles D. Harer, Recidivism among Federal Prisoners released in 1987, 46 JOURNAL OF 
Correctional Education, 98-127 (1995); Thomas Meisenhelder, An Exploratory Study of

12



In fact, the Bureau Of Justice report upon which SEPTA’s experts rely, 

shows that even for the very limited time period it covers, the proximity in time to 

the commission of an initial offense has a great impact on the incidence of 

recidivism. For example, the first year of release accounted for nearly two thirds 

of all recidivism reported for the three years covered in the Bureau Of Justice 

report.'2 While overall recidivism rates of a group of former offenders can only 

rise as each year passes, the probability that an individual offender will re-offend 

for each year remaining crime-free decreases. SEPTA’s experts concede this 

important point which has been substantiated by a number of publically available 

studies.12 13

Not only did the Court permit SEPTA to support its business justification 

defense on the basis of overly broad and generalized recidivism statistics, but it 

similarly accepted SEPTA’s contention that specialized transportation services 

serving people with disabilities and senior citizens are inherently high-risk

Exiting From Criminal Careers, 15 Criminology 319 (1977).

12(A933) (U.S. Dep’t of Justice, Bureau of Justice Statistics, Recidivism of 
Prisoners Released in 1994).

'3See Blumstein Report (A953) n.13 (“The largest volume of recidivism occurs in the first 
year out and the rate decreases in subsequent years.”); Sosbey Report (A922); MICHAEL Ezell & 
Lawrence Cohen, Desisting From Crime (2005); see also John Laub & Robert Sampson, 
Shared Beginnings, Divergent Lives (2003).

13



environments for victimization without inquiry into whether the evidence SEPTA 

relied on supported the particular exclusionary policy it had in place. SEPTA’s 

expert’s purported proof on this point is supported largely by studies describing 

the rate of sex crimes against disabled children and adults.14 While such evidence 

might provide a business justification for an employment policy that excluded 

convicted sex-offenders, it cannot justify an employment exclusion broader than 

this narrow class of offenders. SEPTA can no more rely on this data then it could 

rely on evidence of the effects of smoking crack/cocaine on job performance to 

justify the business necessity of a hiring policy which excluded all individuals 

who indulged in any form of smoking (including cigarette and cigar smoking), if 

such a policy disproportionately impacted a class protected under Title VII. Such 

tenuous evidence simply does not suffice in meeting SEPTA’s burden of showing 

that its employment policy is both job-related and consistent with business 

necessity. See Banks v. City o f  Albany, 953 F. Supp. 28, 36 (N.D.N.Y. 1997) 

(employers must present “convincing expert testimony” that a challenged practice 

is required to establish a business necessity defense).

14 See, e.g., Sosbey Report (A912) (analyzing study conducted in 1991 and updated in 
1994 reviewing incidents of sex crimes committed against disabled children and adults to 
determine the prevalence of crime against vulnerable populations perpetrated by transportation 
providers); id. at (A917) (“Among sex crimes committed against passengers by drivers, cases 
that involve vulnerable victims (most frequently children and people with disabilities) were 
prominent.”) (emphasis added).

14



In the instant case the district court found SEPTA’s employment policy 

justified by business necessity on the mere showing that criminal background 

checks bear some relationship to public safety. Order (A 19-20). The law requires 

that an employment practice not only foster safety and efficiency, but must be 

essential to that goal. Green, 523 F.2d at 1298. In other words, an employer must 

show that the employment policy it has implemented is a valid measure of the 

minimum qualifications necessary to achieve its legitimate goals, banning v. 

SEPTA, 181 F.3d 478 (3d Cir. 1999), cert, denied, 528 U.S. 1131 (2000), on 

appeal after remand, 308 F.3d 286 (3d Cir. 2002) (rejecting business justification 

defense where SEPTA failed to present evidence that the policy in question 

measured the minimal qualifications necessary to perform the job of paratransit 

police officer, and relied instead on evidence merely showing policy had some 

relationship to public safety).15 Because it failed to require SEPTA to show that 

the particular exclusions at issue in the policy were necessary to achieve SEPTA’s 

legitimate interest in passenger safety, the district court’s ruling should be 

reversed.

15In light of this standard, SEPTA’s expert Dr. Sosbey’s reference to the observation of 
forensic psychologist, Vem Quinsey, seems poorly chosen. See Sosbey report (A920) (“If you 
can hire enough people without criminal records, don’t hire any who have one.” ).

15



III. INDIVIDUALIZED CONSIDERATION OF APPLICANTS’ 
CRIMINAL HISTORY INFORMATION IS A FEASIBLE 
EMPLOYMENT POLICY FOR SEPTA AND ITS AGENTS.

An employment policy requiring individualized consideration of the age,

nature and job-relatedness of each applicant's criminal conviction would be

consistent with Title VII’s emphasis on individualized rather than group-based

considerations as a basis for decision making. Moreover, the district court has

found that the paratransit contractors “clearly have the capability to . . . perform a

case-by-case analysis of each prospective employee. . . .” Order (A23). Cf

Albemarle Paper Co., 422 U.S. at 436 (business justification may be pretext for

discrimination where the employer has an equally effective manner at its disposal

for achieving its goals which comply with Title VII). Accordingly, such a policy

would be an appropriate substitute for that currently used by SEPTA, even if it has

no less of a disparate impact on minority applicants.16 It is, however, probable that

the “individualized screening” approach would result in a lessened adverse impact

than that experienced under the blanket exclusions.

l6See Lanning, 181 F.3d at 490 n.15 (If an employer cannot demonstrate that its 
discriminatory employment policy measures the minimum qualifications necessary for the job in 
question, the employer may “develop either a non-discriminatory practice which furthers its 
goals, or an equally discriminatory practice that can meet this standard”) (emphasis added).

16



No less significantly, such individualized consideration would likely 

insulate SEPTA from negligent hiring lawsuits which, under Pennsylvania law, 

turn on whether an employer knew or should have known that an employee posed 

an unreasonable risk to others. Dincher v. Great Atlantic & Pacific Tea Co., 51 

A.2d 710, 714 n.3 (Pa. 1947).17 Under a negligence standard, careful 

individualized consideration of every applicant’s criminal history would serve as 

proof that every reasonable precaution was taken by SEPTA and/or its agents to 

ensure that any particular paratransit employee was suited for his or her position. 

In other words, SEPTA need not proceed as if a strict liability standard were in 

place. See, e.g., Ford v. Gildin, 613 N.Y.S.2d 139 (1994) (employer not liable for 

negligent hiring of an employee with a manslaughter conviction who molested a 

child because “it was not foreseeable ... that a person who had committed 

manslaughter., would molest a child [27] years later.”); cf. F l a . S t a t . Ann. § 

768.096 (employer not liable for torts committed by agents where employer can 

show criminal history obtained and evaluated for information that reasonably 

demonstrated the unsuitability of the prospective employee for the particular work 

to be performed).

’’Moreover, SEPTA, as a Commonwealth agency, in certain instances can seek sovereign 
immunity protection from liability under Section 2310 of Title 1 of the Pennsylvania Judicial 
Code. See 1 Pa . Const. Stat. § 2310; 42 Pa . Const. Stat. § 8521.

17



CONCLUSION

For the foregoing reasons, amicus respectfully suggests that this Court 

reverse the district court’s grant of Summary Judgment.

Dated: 14, December 2005

Respectfully submitted,

THEODORE M. SHAW 
Director-Counsel and President

ROBERT H. STROUP 
MELANCA D. CLARK 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson St., 16th Floor 
New York, NY 10013 
212-965-2200 Phone 
212-226-7592 Fax

Attorneys fo r  Amicus Curiae

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CERTIFICATIONS

1. Certification of Bar Membership

I hereby certify that I, Norman J. Chachkin, am a member in good standing 

of the bar of the United States Court of Appeals for the Third Circuit.

2. Certification of Word Count

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because it contains 4105 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Fed. R. App. P. 

32 (a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using WordPerfect 9.0 

in 14 point, Times New Roman font.

3. Certification of Service

I hereby certify that I e-mailed an electronic copy of the foregoing Brief of 

Amicus Curiae The NAACP Legal Defense & Educational Fund, Inc. in Support 

of Plaintiff-Appellant Seeking Reversal of the District Court’s Order, in a single 

.PDF file, to the Office of the Clerk, United States Court of Appeals for the Third 

Circuit at the following e-mail address: electronic briefs@ca3 .uscourts.gov>.

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I hereby certify that ten copies of the foregoing Brief have been deposited in 

the United States mail, postage prepaid and properly addressed to the Office of the 

Clerk, United States Court of Appeals for the Third Circuit, 21400 United States 

Courthouse, 601 Market Street, Philadelphia, PA 19106.

I hereby certify that two copies of the foregoing Brief have been deposited 

in the United States mail, postage prepaid and properly addressed, to counsel for 

all other parties in this suit, as follows:

Eugene A. Spector 
David J. Cohen
Spector, Roseman & Kodroff, P.C. 
1818 Market Street, Ste 2500 
Philadelphia, PA 19103

Timothy M. Kolman 
Wayne A. Ely
Timothy M. Kolman and Associates 
225 N. Flowers Mill Road 
Langhome, PA 19047

Robert J. Jaurin 
Saul H. Krenzel and Associates 
The Robinson Building, Ste 800 
42 South 15th Street 
Philadelphia, PA 19102

Attorney for Defendant-Appellee

Attorneys for Plaintiffs-Appellants.

4. Certification of Identical Compliance of Briefs 

I hereby certify that the electronic and hard copies of foregoing Brief in the 

instant matter contain identical text.

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5. Certification of Virus Check

I hereby certify that a virus check of the electronic .PDF version of the 

foregoing Brief was performed using Symantic AntiVirus, and the .PDF file was 

found to be virus free.

Dated: 14., December 2005

Attorney for Amicus Curiae

NAACP Legal Defense &
Educational Fund, Inc. 

99 Fludson St., 16th Floor 
New York, NY 10013 
212-965-2200 Phone 
212-226-7592 Fax

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