When any sentence is a life sentence: employment discrimination against ex-offenders.

• Jurisdiction: United States
• Date: 01 December 2015
• Author: Flake, Dallan F.
• Published date: 01 December 2015
• Author: Flake, Dallan F.

2. Title VII Cases

   Title VII provides some relief to ex-offenders who are discriminated against in employment, but only in very limited cases. The statute prohibits disparate treatment and disparate impact in the employment of ex-offenders, but only if it is somehow tied to race, color, sex, national origin, or religion. (189) As with constitutional challenges, the relevant inquiry under Title VII is whether the policy or practice bears some reasonable relation to a particular job. In disparate treatment cases an employer must proffer a legitimate nondiscriminatory reason for the adverse action, (190) whereas in disparate impact cases the employer must prove its exclusionary practice is "job related for the position in question and consistent with business necessity." (191)

   1. Disparate Treatment Claims

      To prove disparate treatment, a plaintiff generally must first establish a prima facie case of discrimination by showing: "(1) he is a member of a protected class, (2) he met his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) the circumstances give rise to an inference of discrimination." (192) The burden then shifts to the employer to proffer a legitimate, nondiscriminatory reason for the adverse action, after which the burden then shifts back to the plaintiff to prove the employer's proffered reason was a pretext for discrimination. (193) For an ex-offender to prevail on a disparate treatment claim, he must prove the employer treated criminal history information differently for different persons based on a Title VH-protected characteristic. In its Enforcement Guidance, the EEOC gives the example of two similarly qualified applicants, one white and one black, who both have convictions for distributing marijuana as high school students. (194) If the employer denies the black candidate an interview based on his criminal record but interviews the white candidate, the employer has treated the ex-offenders differently based on race in violation of Title VII. (195)

      Disparate treatment cases involving ex-offenders are most notable for their extreme deference to employers. For example, in Strong v. Orkand Corporation, the Sixth Circuit held that the plaintiff could not even make out a prima facie case of discrimination because his criminal record rendered him unqualified for the position at issue as a matter of law. (196) The court made no mention of what crimes the plaintiff had committed, when he had committed them, or how they related to the job, but instead appeared simply to take the employer's word for it. (197) Even where an ex-offender does establish a prima facie case of discrimination, the courts have held--often with little or no discussion--that taking an adverse action against an applicant or employee because of the individual's criminal record constitutes a legitimate nondiscriminatory reason for the employment decision. (198) At the pretext stage, courts rarely scrutinize whether the exclusion was justified in light of safety or performance concerns or the ex-offender's individual circumstances; instead, they tend to focus on factors unrelated to the ex-offender herself, such as how strictly the employer followed its policies (199) or whether the employer was consistent in its treatment of comparators. (200)

   2. Disparate Impact Claims

      Unlike disparate treatment cases, where a court's primary focus is on whether the employer's criminal record policy was consistently applied, in disparate impact cases courts carefully scrutinize whether the policy itself is justifiable. To prevail on a disparate impact claim, an ex-offender must show that an employer's facially neutral criminal record policy disproportionately impacts some individuals protected under Title VII. (201) An employer can defeat a disparate impact claim by showing the exclusionary policy is job related and consistent with business necessity. (202)

      The foundational disparate impact case involving ex-offenders is Green v. Missouri Pacific Railroad Company. (203) Buck Green, a black man who served twenty-one months in prison for refusing military induction, brought a disparate impact claim against the Railroad for denying his application for a clerk position pursuant to its policy of refusing to employ any person convicted of a crime other than a minor traffic offense. (204) Having determined the Railroad's policy disproportionately disqualified blacks, the court considered whether the policy was job related and consistent with business necessity. The Railroad identified several reasons its policy was necessary: fear of cargo theft, handling company funds, bonding qualifications, the possible impeachment of an employee as a witness, negligent hiring liability, employment disruption due to recidivism, and an alleged lack of moral character of persons with convictions. (206) The court noted that although these reasons could "serve as relevant considerations in making individual hiring decisions, they in no way justified] an absolute policy which sweeps so broadly." (207) In a post-remand appeal, the Eighth Circuit affirmed an injunction permitting the Railroad's use of criminal convictions as a factor in its employment decisions, so long as the Railroad considered three factors: the nature and gravity of the offense, how much time had elapsed since the offense or the completion of the sentence, and the nature of the job held or sought. (208)

      For decades, courts have incorporated Green's three factors into theier analysis of whether criminal record exclusions are job related and consistent with business necessity. (209) The EEOC likewise has integrated the Green factors into its various policies and guidance on criminal convictions. (210) However, in 2007, the Third Circuit sent shockwaves through the business world by imposing a more rigorous assessment of business necessity in El v. Southeastern Pennsylvania Transportation Authority ("SEPTA"). (211) The case involved a disparate impact challenge to SEPTA's criminal conviction policy, which prohibited drivers of its paratransit busses from having certain convictions. (212) Douglas El brought suit against SEPTA after he was denied a paratransit driver position because of a forty-year-old, second-degree homicide conviction for his role in a gang-related fight when he was fifteen years old. (213) He served three-and-a-half years in prison. (214) Although the court affirmed summary judgment for SEPTA, it made clear it had serious "reservations" about SEPTA's policy. (215)

      The court centered its analysis on the issue of risk, noting that hiring policies "ultimately concern the management of risk," and that although Title VII "does not ask the impossible" of employers in measuring risk perfectly, "[i]t does ... require that the policy under review accurately distinguish between applicants that pose an unacceptable level of risk and those that do not." (216) Crucially, the court interpreted various Supreme Court disparate impact cases as "refusing] to accept bare or 'commonsense'-based assertions of business necessity and instead requiring] some level of empirical proof that challenged hiring criteria accurately predicted job performance." (217) The court concluded from these cases that "employers cannot rely on rough-cut measures of employment-related qualities; rather, they must tailor their criteria to measure those qualities accurately and directly for each applicant." (218) The court likewise interpreted Supreme Court precedent as rejecting "more is better-style reasoning," whereby an employer may try to justify its exclusionary policy based on "some abstract notion that more of a given quality is better." (219) In so doing, the court implicitly rejected Green's three-factor test and the EEOC's formulation of the business necessity defense and instead demanded empirically-backed evidence to justify exclusionary employment policies. (220)

      The case ultimately turned on the fact that SEPTA produced empirical evidence to justify its policy, which El did not refute. (221) A renowned expert on recidivism testified that although an individual's likelihood of recidivating decreases the longer he stays free from criminal activity, the individual cannot "be judged to be less or equally likely to commit a future violent act than comparable individuals who have no prior violent history." (222) The expert testified that although the risk differential might be small, making predictions about comparable low-probability events would be "extremely difficult." (223) Based on this testimony, the court concluded that even though the probability El would recidivate after forty years of living crime free was small, it was sufficient to justify SEPTA's policy, "given the marked sensitivity of the paratransit position at issue." (224) A second expert witness testified that "disabled people are proportionately more likely than others to be the victims of violent or sexual crimes," and that "employees of transportation providers commit a disproportionate share of those crimes against disabled people." (225) He further testified that the predictive power of past violent criminal activity "moderates over time but remains regardless of how much time passes." (226) From this, the court determined that SEPTA's decision to screen out applicants with violent convictions, no matter how remote, was appropriate in light of the extraordinarily sensitive nature of the paratransit driver position. (227)

      Although the court expressed skepticism about the validity of the expert testimony, (228) the absence of any counterevidence left it "little choice" but to uphold SEPTA's policy. (229) In the court's view, had El "hired an expert who testified that there is [a] time at which a former criminal is no longer any more likely to recidivate than the average person"--a redemption point (230)--it would have been "a different case." (231) El marks a serious departure from past judicial...