                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2007

El v. SEPTA
Precedential or Non-Precedential: Precedential

Docket No. 05-3857




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                                   PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                  No. 05-3857


                DOUGLAS EL,

                           Appellant

                      v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
           AUTHORITY ("SEPTA"),

                           Defendant/Third-Party
                           Plaintiff

                      v.

       J&D JAGICLA ENTERPRISES, INC.,
           trading as LIBERTY VANS;
       KING LIMOUSINE SERVICE, INC.;
              ANDERSON TRAVEL;
  KRAPFS CPS, INC.; COMMUNITY TRANSIT, INC.;
   ATLANTIC PARATRANS, INC.; TRIAGE, INC.;
            EDENS CORPORATION;
      KING PARATRANSIT SERVICE, INC.,
                                 Third-Party Defendants


        Appeal from the United States District Court
          for the Eastern District of Pennsylvania
           (D.C. Civil Action No. 02-cv-03591)
         District Judge: Honorable J. Curtis Joyner


                Argued September 28, 2006

        Before: MCKEE, and AMBRO, Circuit Judges
                  RESTANI,* Chief Judge

              (Opinion filed March 19, 2007)

Eugene A. Spector, Esquire
David J. Cohen, Esquire (Argued)
Spector, Roseman & Kodroff, P.C.
1818 Market Street, Suite 2500
Philadelphia, PA 19103

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


    *
     Honorable Jane A. Restani, Chief Judge, United States
Court of International Trade, sitting by designation.

                             2
      Counsel for Appellant

Saul H. Krenzel, Esquire (Argued)
Robert J. Haurin, Esquire
Saul H. Krenzel & Associates
42 South 15th Street, Suite 800
Philadelphia, PA 19102

      Counsel for Appellee

Theodore M. Shaw
  Director-Counsel and President
Norman J. Chachkin, Esquire
Robert H. Stroup, Esquire
Melanca D. Clark, Esquire
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, NY 10013

Sharon M. Dietrich, Esquire
Community Legal Services, Inc.
1424 Chestnut Street
Philadelphia, PA 19102

      Counsel for Amicus-Appellants




               OPINION OF THE COURT



                              3
AMBRO, Circuit Judge

       This appeal arises out of a Title VII action alleging
employment discrimination based on race. Plaintiff Douglas El
claims that the Southeastern Pennsylvania Transportation
Authority (“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
records.1

         The Court granted summary judgment, however, in favor
of SEPTA, concluding that it had borne the burden of proving
that its policy is consistent with 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.

       I.   Factual Background and Procedural History

       In January 2000, King Paratransit Services, Inc. (“King”)
conditionally hired El to drive paratransit buses. The position
involves providing door-to-door and curb-to-curb transportation
service for people with mental and physical disabilities. King


   1
      We do not comment on whether the policy actually has a
disparate impact, as the District Court ruled that the issue was
not resolvable at the summary judgment stage. See infra, at 8–9.

                               4
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.2 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.

       As the background check revealed, El was convicted of
second-degree murder in 1960. According to his testimony, the
murder took place in the context of a gang-related fight in which
the victim was shot and died. El was 15 years old at the time,
and the victim was 16. El claims not to have been the
triggerman, and, indeed, he was not the only person convicted
of the murder, but no objective report of the circumstances
appears in the record before us. Following his conviction, El
served three-and-a-half years for his crime. This now 47-year-
old conviction is El’s only violent offense.

       According to the contract in place between King and


  2
    El actually had disclosed the conviction on his application,
but King personnel apparently did not notice it until they
examined the criminal background report.

                               5
SEPTA in 2000, King was required to ensure that anyone in
SEPTA service as a driver or attendant have:

               e.    no record of driving under [the]
                     influence (DUI) of alcohol or
                     drugs, and no record of any felony
                     or misdemeanor conviction for any
                     crime of moral turpitude or of
                     violence against any person(s);

               f.    have no record of any conviction
                     within the last seven (7) years for
                     any other felony or any other
                     midemeanor in any category
                     referenced below (see section
                     F.2.10.C ) [listing specific
                     offenses], and not be on probation
                     or parole for any such crime, no
                     matter how long ago the conviction
                     for such crime may be.

App. at 429.

         The parties dispute whether this provision accurately
states the hiring policy that was applied to El. SEPTA contends
that it does. El, on the other hand, argues that King and SEPTA
applied a much broader exclusion taken from language in
another part of the contract that seems to disallow hiring anyone

                               6
with a criminal conviction of any kind. Specifically, El argues
that King applied a nearby provision in the contract stating that
“[t]he Contractor [King] shall . . . reject/bar any applicant or
current employee from SEPTA-related work whose record
includes . . . any conviction for any felony and/or misdemeanor.”
App. at 430.

       The District Court found that King applied the narrower
policy. King personnel testified that they applied the narrower
policy to El and to all of its SEPTA-related applicants.
Moreover, personnel from other SEPTA subcontractors testified
that they applied the narrower policy in similar contracts, and
SEPTA personnel testified that the narrower policy was the one
that SEPTA intended for them to apply and the one that they
referred to when asked for assistance with contract
interpretation. SEPTA’s transactional lawyers may have been
less than precise in writing an internally inconsistent contract,
but all of the record evidence shows that one particular
interpretation of that inconsistency prevailed,3 and so we cannot
conclude that the issue is genuinely disputed. Thus, we decide
this case on the basis of the narrower hiring policy quoted


   3
      It may be that other SEPTA subcontractors applied other
hiring policies around this time. Because El does not—at least
at this time in the litigation—represent a class, the only hiring
policy properly at issue is the one applied to him, and all of the
evidence indicates that it was the narrow policy that King used
in deciding to terminate his employment.

                                7
above.

        After his employment was terminated, El filed a
complaint with the Equal Employment Opportunity Commission
(“EEOC”) in which he alleged that SEPTA’s hiring policy
violated Title VII of the Civil Rights Act of 1964 4 by
discriminating on the basis of race. Specifically, he argued that
the policy has a disparate impact: because African Americans
and Hispanics are more likely to have a criminal record, they are
more likely to run afoul of the policy. After investigating his
complaint, the EEOC found in El’s favor. The agency was,
however, unable to resolve the dispute, and the Civil Rights
Division of the Department of Justice declined to pursue the
matter.

       El elected to pursue this claim himself in District Court
as a class action. The District Court decided not to determine
immediately whether to certify the proposed class. Rather, it
allowed full discovery leading up to a period in which parties
could file dispositive motions. After completing discovery,
SEPTA moved for summary judgment, arguing that (1) it was
not El’s employer for Title VII purposes, (2) El had not
submitted sufficient evidence that SEPTA’s policy had a


   4
     Title VII broadly prohibits employers from discriminating
against applicants and employees on the basis of race, color,
religion, sex, or national origin. See generally 42 U.S.C. §
2000e-2.

                               8
disparate impact on racial minorities, (3) it had submitted
sufficient evidence to prove that its policy was justified by
business necessity, and (4) El had not submitted sufficient
evidence of an alternative policy that would accomplish
SEPTA’s legitimate goal of public safety. The District Court
denied the motion on the first two grounds, but granted it on the
second two, thus effectively ending the litigation in SEPTA’s
favor. This appeal follows.5

                   II.   Standard of Review

       The standard for awarding summary judgment is well-
worn: it is fitting when “there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). The moving party
“bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotation marks omitted).

       Because SEPTA sought summary judgment on its
affirmative defense of business necessity, it would bear the


  5
   The District Court had jurisdiction under 28 U.S.C. § 1331;
we have jurisdiction under 28 U.S.C. § 1291.

                                 9
burden of proof 6 at trial and therefore must show that it has
produced enough evidence to support the findings of fact
necessary to win. Marzano v. Computer Sci. Corp., Inc., 91
F.3d 497, 502 (3d Cir. 1996); Sorba v. Penn. Drilling Co., Inc.,
821 F.2d 200, 202-03 (3d Cir. 1987). When a witness’s
credibility is critical to supporting the necessary findings of fact,
the District Court must consider whether there are sufficient
grounds for impeachment that would place the facts to which he
testifies in legitimate dispute. See Horowitz v. Fed. Kemper Life
Assur. Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (“Summary
judgment is inappropriate when a case will turn on credibility
determinations.”) (citing Anderson v. Liberty Lobby, Inc., 477


   6
     Many of the cases we cite use the terms “burden of proof”
and “burden of persuasion” interchangeably. Yet the two
concepts are not identical. The burden of proof comprises the
burdens of production and persuasion. McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 287 (3d Cir. 2006). The
former is the obligation to come forward with evidence of a
litigant’s necessary propositions of fact. It often matters most
before trial because plaintiffs who have not come forward with
hard evidence to support their necessary allegations cannot
survive a summary judgment motion by the defense. The
burden of persuasion, on the other hand, is the obligation to
convince the factfinder at trial that a litigant’s necessary
propositions of fact are indeed true. 21B Charles Alan Wright
& Kenneth W. Graham, Jr., Fed. Prac. & Proc. § 5122 (3d ed.
2005); Black’s Law Dictionary 190 (7th ed. 1999).


                                 10
U.S. 242, 255 (1986)). In considering the evidence, the court
should draw all reasonable inferences against the moving party.
Anderson, 477 U.S. at 255 (“The evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in
his favor.”) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
158–59 (1970)); see also Atkinson v. LaFayette Coll., 460 F.3d
447, 451 (3d Cir. 2006).

        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. Josey v. John R.
Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993). 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. Berckeley Inv. Group,
Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (“In this
respect, summary judgment is essentially ‘put up or shut up’
time for the non-moving party: the non-moving party must rebut
the motion with facts in the record and cannot rest solely on
assertions made in the pleadings, legal memoranda, or oral
argument.”).

      Put another way, it is inappropriate to grant summary
judgment in favor of a moving party who bears the burden of




                               11
proof at trial unless a reasonable juror 7 would be compelled to
find its way on the facts needed to rule in its favor on the law.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (holding that summary judgment is
appropriate “[w]here the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party . . . .”);
Hill v. City of Scranton, 411 F.3d 118, 127 n.11 (3d Cir. 2005)
(“Of course, because the defendant bears the burdens of proof
and persuasion on the third prong[,] . . . to prevail at summary
judgment on this prong the defendant must present evidence of
such quality that no reasonable juror could conclude that the
protected activity was the but-for cause of the termination.”);
see also Turner v. Hershey Chocolate U.S., 440 F.3d 604, 612
(3d Cir. 2006) (“Were we to uphold the District Court’s
conclusion and grant of summary judgment we would need to
conclude that reasonable jurors could not but find that rotating
among all three tables is an essential function of the shaker table
inspector position at Hershey.”) (emphasis added). After all, the
burden of proof includes the obligation to persuade the
factfinder that one’s propositions of fact are indeed true.


   7
     Our use of the term “reasonable juror” here is purposeful,
for the Supreme Court has held that “some metaphysical doubt
as to the material facts” will not defeat a motion for summary
judgment. Matsushita Elec. Indus. Co., 475 U.S. at 586. A
reasonable juror will be compelled to find for the moving party
unless there are reasonable—not fanciful or illusory—concerns
with the moving party’s evidence.

                                12
Black’s Law Dictionary 190 (7th ed. 1999). Thus, if there is a
chance that a reasonable factfinder would not accept a moving
party’s necessary propositions of fact, pre-trial judgment cannot
be granted. Specious objections will not, of course, defeat a
motion for summary judgment, but real questions about
credibility, gaps in the evidence, and doubts as to the sufficiency
of the movant’s proof, will.

                       III.    Discussion

            A.    The Business Necessity Defense

       1.     Contours of the Defense

        The Supreme Court first recognized that Title VII
plaintiffs can make out a viable employment discrimination
claim without alleging or proving discriminatory intent in
Griggs v. Duke Power, 401 U.S. 424 (1971). The Court held
that plaintiffs can succeed by showing that the challenged
employment policy has a discriminatory effect that is not
justified by the needs of the defendant’s business. The Court
announced that these “disparate impact” cases should proceed
in two steps: (1) the plaintiff must prove that the challenged
policy discriminates against members of a protected class, and
then (2) the defendant can overcome the showing of disparate
impact by proving a “manifest relationship” between the policy
and job performance. This second step came to be known as the



                                13
“business necessity” defense, 8 and it serves as an employer’s
only means of defeating a Title VII claim when its employment
policy has a discriminatory effect.9

       The Supreme Court further developed the business
necessity defense over a series of cases. In Griggs, it dealt with
aptitude tests administered by an employer in making hiring
decisions. The Court held that discriminatory employment tests
must “bear a demonstrable relationship to successful



   8
    The name derives from the Griggs opinion:
              The [Civil Rights] Act proscribes
              not only overt discrimination but
              also practices that are fair in form,
              but discriminatory in operation.
              The touchstone is business
              necessity.     If an employment
              practice which operates to exclude
              Negroes cannot be shown to be
              related to job performance, the
              practice is prohibited.
401 U.S. at 431 (emphasis added).
   9
    As we detail in Part III.B, infra, the successful assertion of
the business necessity defense is not an ironclad shield; rather,
the plaintiff can overcome it by showing that an alternative
policy exists that would serve the employer’s legitimate goals as
well as the challenged policy with less of a discriminatory
effect.

                               14
performance of the jobs for which it was used.” Griggs, 401
U.S. at 431. It further held that “any given requirement must
have a manifest relationship to the employment in question.” Id.
at 432. In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975),
it elaborated on the use of discriminatory tests by adopting the
EEOC’s determination that test results must predict or correlate
with “important elements of work behavior which comprise or
are relevant to the job or jobs for which candidates are being
evaluated.” Id. at 431 (quoting 29 C.F.R. § 1607.4(c)). In
Dothard v. Rawlinson, 433 U.S. 321 (1977), the Court rejected
height and weight criteria for hiring prison guards, holding that
discriminatory requirements must “be shown to be necessary to
safe and efficient job performance.” Id. at 331 n.14. The
employer in that case argued that strength was an essential
quality and that the height and weight criteria served as a proxy
for strength. The Court rejected this argument, holding that
while strength may have been an essential quality, the employer
had not specified the amount of strength necessary or
demonstrated any correlation between these height and weight
criteria and the necessary amount thereof. Id. at 331–32. In
Connecticut v. Teal, 457 U.S. 440 (1982), it held that an
employer may not justify using a discriminatory test for
determining promotion eligibility by also using an affirmative
action system after the fact to achieve an appropriate racial
balance. As the Court noted, Title VII operates not primarily to
the benefit of racial or minority groups, but to ensure that
individual applicants receive the consideration they are due and
are not screened out by arbitrary policies or devices. Id. at

                               15
453–54.

        For our purposes, two aspects of these cases are
noteworthy. First, the Court refused to accept bare or “common-
sense”-based assertions of business necessity and instead
required some level of empirical proof that challenged hiring
criteria accurately predicted job performance. Dothard is
particularly noteworthy because the Court rejected an
employer’s common-sense argument that prison guards must be
relatively strong to justify criteria that roughly measured
strength. The lesson is 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.

        Second, the Court did not allow employers to rely on
“more is better”-style reasoning to justify their policies. In
Griggs, Albemarle, and Dothard, the employers argued that the
challenged criteria were justified by the fact that one would
naturally prefer smarter or stronger employees to less intelligent
or weaker ones, and so it was of no moment that the criteria
might be set a bit higher than strictly necessary. The Court held,
however, that some abstract notion that more of a given quality
is better is insufficient to justify a discriminatory policy under
Title VII; rather, the employer must present real evidence that
the challenged criteria “‘measure[s] the person for the job and
not the person in the abstract.’” Dothard, 433 U.S. at 332
(quoting Griggs, 401 U.S. at 436).

                               16
        The Supreme Court has never dealt directly with criminal
record policies, though it has done so tangentially with criminal
behavior in two cases. In McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Court sustained an employer’s refusal
to rehire a former employee on the ground that the employee had
participated in various disruptive, illegal protests in front of the
employer’s premises. Id. at 794–95, 804. Specifically, it held
that the employer’s fear that this employee would continue to be
disruptive in violation of the law was a legitimate business
reason for the refusal. Id. at 804. In New York City Transit
Authority v. Beazer, 440 U.S. 568 (1979), the Court held that it
was permissible under Title VII to refuse to hire anyone using
methadone to treat their addiction to illegal drugs for “safety
sensitive” positions on a city transit system because such a
policy serves the “legitimate employment goals of safety and
efficiency.” Id. at 587 n.31.

        Although these two Supreme Court cases deal with
illegal activity on the part of the applicant, neither one squarely
addresses the issue of prior convictions. In McDonnell Douglas,
the employer had other specific reasons for fearing disruption
from the applicant than the mere existence of a criminal record.
In Beazer, the Court addressed the suitability of hiring people
actively using methadone to recover from addiction to illegal
drugs, not the suitability of people with records of past criminal
behavior. Moreover, the business necessity defense was not the
focus of either case, and so the Court did not articulate the
contours of the defense with any specificity.

                                17
       In 1989 the Supreme Court expanded the business
necessity defense in Wards Cove Packing Co., Inc. v. Atonio,
490 U.S. 642 (1989). There it held that a challenged
discriminatory employment practice need not be necessary in the
sense of “essential” or “indispensable” to pass muster under
Title VII; rather, the practice must merely “serve[], in a
significant way, the legitimate employment goals of the
employee.” Wards Cove, 490 U.S. at 659. Even more
significant was that it shifted the burden of proof from the
employer to the employee. Id.

        Recognizing this holding as a departure from Griggs,
Congress responded with the Civil Rights Act of 1991 (the
“Act”), which placed back on the employer the burden of proof.
42 U.S.C. § 2000e-2(k). The Act also abrogated the Wards
Cove definition of business necessity. Civil Rights Act of 1991,
§ 3(2), Pub. L. No. 102-166, 105 Stat. 1071 (1991) (stating that
a purpose of the Act is to codify the concept of business
necessity as it existed prior to Wards Cove). Congress noted
both in the purpose section of the Act and in an authoritative
interpretive memorandum that “[t]he terms ‘business necessity’
and ‘job related’ [as used in the Act] are intended to reflect the
concepts enunciated by the Supreme Court in Griggs v. Duke
Power Co., 401 U.S. 424 (1971), and in the other Supreme
Court decisions prior to Wards Cove Packing Co., Inc. v. Atonio,
490 U.S. 642 (1989).” 137 Cong. Rec. S15, 273–01 (daily ed.
Oct. 25, 1991) (statement of Sen. Danforth); see also Civil
Rights Act of 1991, §§ 3(2) & 105(b) (adopting the Griggs

                               18
definition of business necessity and stating that only the
interpretative memorandum quoted may be used in construing
the Act). Thus, the text and legislative history lead directly to
the conclusion that Congress intended to codify the Griggs
definition of business necessity, as clarified and developed in
the Supreme Court’s pre-Wards Cove jurisprudence.

        Unfortunately, as numerous courts and commentators
have noted, Griggs and its progeny did not provide a precise
definition of business necessity.       See, e.g., Lanning v.
Southeastern Pa. Transp. Auth., 181 F.3d 478, 488 (3d Cir.
1999) (Lanning I) (noting that the Act was so unclear that both
proponents and opponents of a strict business necessity standard
claimed victory); Susan S. Grover, The Business Necessity
Defense in Disparate Impact Discrimination Cases, 30 Ga. L.
Rev. 387, 391–93 (1996); Andrew C. Spiropoulos, Defining the
Business Necessity Defense to the Disparate Impact Cause of
Action: Finding the Golden Mean, 74 N.C.L. Rev. 1479, 1520
(1996). Normally, we would look to additional legislative
history to determine if it clarifies what Congress meant by
business necessity. However, Congress stipulated that courts
may not consider any document other than the interpretive
memorandum quoted above as the Act’s legislative history.
Civil Rights Act of 1991, § 105(b) (stating that nothing other
than a specified interpretive memorandum should be considered
legislative history and thereby used to construe the Act). In
Lanning I and II, we heeded Congress’s instruction and looked
no further than the memorandum. Lanning v. Southeastern Pa.

                               19
Transp. Auth., 308 F.3d 286, 289 (3d Cir. 2002) (Lanning II);
Lanning I, 181 F.3d at 488.

       While some may be skeptical of Congress’s power to
instruct courts what legislative history they may take into
account when interpreting a statute, we need not consider
anything beyond the interpretive memorandum because doing so
would be unhelpful in this case.10 Members of Congress simply
could not agree on a precise definition of business necessity; all


    10
        Even if we did review additional legislative history, it
would not clarify the issue. In floor debate, then-Minority
Leader Senator Robert Dole stated that the Act’s definition of
business necessity is less strict than those articulated in the
initial versions of the Senate bill that eventually became the Act
and the parallel House bill. 137 Cong. Rec. S15, 472–01 (daily
ed. Oct. 30, 1991) (statement of Sen. Dole). In the initial
version of the Senate bill, business necessity was defined as
“bear[ing] a manifest relationship” to “the performance of actual
work activities required by the employer for a job or class of
jobs” or “any behavior that is important to the job, but may not
comprise actual work activities.” S. 1745, 102d Cong. § 7 (Sep.
26, 1991). In the initial version of the House bill, business
necessity was defined as “bear[ing] a significant relationship to
successful performance of the job.” H.R. 1, 102d Cong. § 3
(Jan. 6, 1991). A confusing aspect of the House bill is that,
while it purports to overrule Wards Cove, the language is
strikingly similar to that used in the case. Compare id. with
Wards Cove, 490 U.S. at 659.

                               20
they could agree upon was overruling Wards Cove and
reinstating the Supreme Court’s somewhat conflicting post-
Griggs and pre-Wards Cove jurisprudence. Thus, our task is to
be as faithful to that intent as possible.

       Attempting to implement the Griggs standard, we have
held that hiring criteria must effectively measure the “minimum
qualifications for successful performance of the job in
question.” See Lanning I, 181 F.3d at 481. This holding reflects
the Griggs/Albemarle/Dothard rejection of criteria that are
overbroad or merely general, unsophisticated measures of a
legitimate job-related quality. It is also consistent with the fact
that Congress continues to call the test “business necessity,” not
“business convenience” or some other weaker term.

        However, hiring policies need not be perfectly tailored to
be consistent with business necessity. As we held in Lanning II,
employers need not set the bar so low that they consider an
applicant with some, but unreasonably low, probability of
successful performance. Lanning II, 308 F.3d at 292 (“It would
clearly be unreasonable to require SEPTA applicants to score so
highly on the run test that their predicted rate of [job] success be
100%. It is perfectly reasonable, however, to demand a chance
of success that is better than 5% to 20%.”). After all, the
Supreme Court has held that Title VII never forces an employer
to accept an unqualified—or even less qualified—applicant in
the name of non-discrimination. Griggs, 401 U.S. at 436
(“Congress has not commanded that the less qualified be

                                21
preferred over the better qualified simply because of minority
origins.”). Moreover, the Supreme Court has noted that bright-
line criteria, such as aptitude tests, are legitimate and useful
hiring tools so long as they accurately measure a person’s
qualifications. Id.

        Putting these standards together, then, we require that
employers show that a discriminatory hiring policy
accurately—but not perfectly—ascertains an applicant’s ability
to perform successfully the job in question. In addition, Title
VII allows the employer to hire the applicant most likely to
perform the job successfully over others less likely to do so.

       2.     Applying the Defense to Criminal Conviction
              Policies

        Prior decisions on business necessity do not directly
control here. The standards set out in Griggs and its progeny
(including the standards noted by our Court in Lanning I and II)
do not parallel the facts of this case. In the cases cited above,
the hiring policies at issue were tests designed or used—at least
allegedly—to measure an employee’s ability to perform the
relevant jobs. 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. Thus, our standard of “minimum
qualifications necessary for successful performance of the job

                                22
in question” is appropriate in test-score cases, but awkward here
because “successful performance of the job” in the usual sense
is not at issue. See Lanning I, 181 F.3d at 482. SEPTA could
argue that successful performance of the job includes not
attacking a passenger and, therefore, that the standard is still
appropriate. However, the standard is worded to address ability,
not risk. Yet, the issue before us is the risk that the employee
will harm a passenger, and the phrase “minimum qualification”
simply does not fit, as it is hard to articulate the minimum
qualification for posing a low risk of attacking someone.

       The only reported appellate level case to address squarely
the issue of exclusions from eligibility on the basis of prior
convictions is Green v. Missouri Pac. R.R. Co., 523 F.2d 1290
(8th Cir. 1975). There the employer refused to hire anyone for
any position who had been convicted of any offense other than
a minor traffic violation. Id. at 1292. Green had applied for an
office job, and he was not considered because of a previous
conviction for refusing to answer the draft (after failing to
qualify as a conscientious objector). Id. at 1292–93. The Court
held that the employer’s policy was too broad to be justified by
business necessity. Id. at 1298–99.

       Green, however, presented materially different facts than
those before us in two respects. First, the job in Green was an
office job at a corporate headquarters; it did not require the
employee to be alone with and in close proximity to vulnerable
members of society. The public safety concern is of more

                               23
moment in our case. Second, the hiring policy in Green
prevented hiring a person with any criminal conviction, “no
matter how remote, insubstantial, or unrelated to [the]
applicant’s personal qualifications as an employee.” Id. at 1296
(quoting McDonnell Douglas, 411 U.S. at 806). Here, SEPTA’s
policy only prevents consideration of people with certain types
of convictions—those that it argues have the highest and most
unpredictable rates of recidivism and thus present the greatest
danger to its passengers. In this context, Green was an easier
case insofar as the Supreme Court has held firmly that an
employer with an extremely broad exclusionary policy that fails
to offer any empirical justification for it is unable to make out a
successful business necessity defense, Dothard, 433 U.S. at 334,
whereas SEPTA has a narrower policy for a position in which
criminal convictions are more job-related.

       The EEOC has spoken to the issue in its Compliance
Manual, which states that an applicant may be disqualified from
a job on the basis of a previous conviction only if the employer
takes into account:

       1.     The nature and gravity of the offense or offenses;

       2.     The time that has passed since the conviction
              and/or completion of the sentence; and

       3.     The nature of the job held or sought.



                                24
Equal Empl. Opp. Comm. Compliance Manual § 605 App. The
EEOC clarifies that “nature and gravity of the offense” means
for employers to consider the circumstances of that offense. Id.
The EEOC’s Guidelines, however, do not speak to whether an
employer can take these factors into account when crafting a
bright-line policy, nor do they speak to whether an employer
justifiably can decide that certain offenses are serious enough to
warrant a lifetime ban. SEPTA’s policy arguably takes into
account the sensitive nature of the job and sorts applicants by
type of offense. For some offenses, it considers the time since
the conviction; for others, it does not.

      In addition, it does not appear that the EEOC’s Guidelines
are entitled to great deference. While some early cases so held
in interpreting Title VII, Griggs, 404 U.S. at 434, more recent
cases have held that the EEOC is entitled only to Skidmore
deference. EEOC v. Arabian American Oil Co., 499 U.S. 244,
257 (1991) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)) (superseded by statute on unrelated grounds). Under
that standard, the EEOC gets deference in accordance with the
thoroughness of its research and the persuasiveness of its
reasoning. Id. Here, the EEOC’s policy was rewritten to bring
it in line with the Green case, but the policy document itself
does not substantively analyze the statute. See Equal Empl.
Opp. Comm. Compliance Manual § 605 App.11


    11
       Two district courts have published decisions on prior
conviction policies. In EEOC v. Carolina Freight Carriers Co.,

                               25
723 F. Supp. 734 (S.D. Fla. 1989), the employer refused to hire
any applicant for a truck driver position who had been convicted
of any felony or misdemeanor related to theft. Id. at 737–38.
The employer stated that its drivers were in positions of trust
because the opportunity to steal cargo was so great and it could
not risk hiring anyone with a theft-related or other serious
criminal conviction. Id. at 738. The District Court for the
Southern District of Florida held that the employer demonstrated
the requisite business necessity, specifically criticizing the
holding in Green and asserting that making out a business
necessity defense does not require strict proof that a conviction
policy is effective. Id. at 752–53. Indeed, the employer seems
not to have submitted any recidivism statistics or any other
indicia of the effectiveness of its policy but for its own
statements that it considered the policy effective. Id. at 754.
Besides this shortcoming, Carolina Freight was decided under
the Wards Cove definition of business necessity.
      Before Green, a District Court in Louisiana dealt with a
case in which an African American bellman was fired because
of a criminal record involving serious property-related crimes.
Richardson v. Hotel Corp. of America, 332 F. Supp. 519 (E.D.
La. 1971), aff’d per curiam at 468 F.2d 915 (5th Cir. 1972)
(affirming the District Court without opinion). Specifically, the
hotel refused to hire anyone as a bellman who had been
convicted of a serious crime (left undefined in the opinion). Id.
at 521. The District Court found that the policy was warranted
by business necessity because of the sensitive nature of a
bellman’s job, particularly a bellman’s easy access to guests’
rooms. Id. As the Richardson case was decided shortly after

                               26
      Considering the dearth of authority directly on point, we
believe that our standards from Lanning I and II—namely that
discriminatory hiring policies accurately but not perfectly
distinguish between applicants’ ability to perform successfully
the job in question—can be adapted to fit the context of criminal
conviction policies. In a broad sense, hiring policies, such as the
one at issue here, ultimately concern the management of risk. In
Lanning I & II, we dealt with how employers manage the risk
that applicants will be unable to perform the job in question.
See Lanning II, 308 F.3d at 287–88; Lanning I, 181 F.3d at 482.
Here we deal with the risk that an applicant will endanger the
employer’s patrons. In both cases, it is impossible to measure
the risk perfectly,12 and in both cases Title VII does not ask the
impossible. It does, however, as in the case of performance-
related policies, require that the policy under review accurately




Griggs, the District Court applied the Griggs “manifest
relationship” standard. Id. (quoting Griggs, 401 U.S. at 432).
As in Carolina Freight, the District Court required no
sophisticated showing that the policy was narrowly-tailored, and
the opinion does not cite recidivism statistics.
    12
       As SEPTA discovered in the tragic case of paratransit
driver David deSouza, even applicants with clean criminal
records sometimes endanger passengers. At the time of his hire
by King, deSouza had no prior criminal convictions.
Nevertheless, he attacked and raped a passenger while serving
as a SEPTA driver.

                                27
distinguish between applicants that pose an unacceptable level
of risk and those that do not.13

      El urges us to go further and hold that Title VII prohibits
any bright-line policy with regard to criminal convictions; he
argues, rather, that Title VII requires that each applicant’s
circumstances be considered individually without reference to
any bright-line rules. We decline to go so far. 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.14


   13
      It may seem odd to speak of an acceptable level of risk in
this context, given the horrors that drivers can inflict on disabled
passengers, but, as the deSouza case demonstrates, some level
of risk is inevitable, see supra note 12. SEPTA may minimize
that risk to the extent reasonably possible, but whatever criteria
it uses must distinguish with sufficient accuracy between those
who pose that minimal level of risk and those who pose a higher
level.
   14
      In this case, we have no occasion to hold that bright-line
policies in the criminal conviction context are per se invalid.
Indeed, we have upheld policies in other Title VII contexts that
effectively bar an applicant from employment on the basis of a
single, bright-line test result, but whatever criteria it uses must
distinguish with sufficient accuracy between those who pose

                                28
     3.    Could a Reasonable Juror Find that SEPTA’s
           Policy Is Not Consistent with Business Necessity?

      In arguing that its policy is consistent with business
necessity, SEPTA claims that it has presented evidence such that
a reasonable juror must find that: (1) the job of a paratransit
driver requires that the driver be in very close contact with
passengers, (2) the job requires that the driver often be alone
with passengers, (3) paratransit passengers are vulnerable
because they typically have physical and/or mental disabilities,
(4) disabled people are disproportionately targeted by sexual and
violent criminals, (5) violent criminals recidivate at a high rate,
(6) it is impossible to predict with a reasonable degree of
accuracy which criminals will recidivate, (7) someone with a
conviction for a violent crime is more likely than someone
without one to commit a future violent crime irrespective of how
remote in time the conviction is, and (8) SEPTA’s policy is the
most accurate way to screen out applicants who present an
unacceptable risk.

     As an initial matter, we agree with SEPTA that these facts,
if proved, would be sufficient to show that its policy is
consistent with business necessity, at least as it applies to a


that minimal level of risk and those who do not. Lanning II,
308 F.3d at 291–92 (affirming SEPTA’s use of a bright-line
aerobic capacity test to bar applicants from employment as
transit police officers).

                                29
person with a violent criminal conviction like El.15 If someone
with a violent conviction presents a materially higher risk than
someone without one, no matter which other factors an
employer considers, then SEPTA is justified in not considering
people with those convictions.16 For example, SEPTA may be
able to show that a policy excluding all violent offenders is
justified by business necessity because other factors—such as
age at conviction, the number of violent convictions, and/or the
remoteness of that conviction—are unreliable or otherwise fail
to reduce the risk to an acceptable level.


   15
     It is worth noting that SEPTA also perpetually bans from
paratransit employment people with convictions for crimes of
moral turpitude. Because the evidence submitted has focused on
violent convictions like El’s, we have no occasion to determine
whether SEPTA’s policy may be justified as to those convicted
of non-violent crimes of moral turpitude.
   16
       SEPTA too heavily emphasizes the sixth alleged fact: that
it is impossible to predict which criminal will recidivate. This
fact, if proved, is of little use because it is also impossible to
predict which non-criminal will commit a crime. What matters
is the risk that the individual presents, taking into account
whatever aspects of the person’s criminal history are relevant.
Thus, if screening out applicants with very old violent criminal
convictions accurately distinguishes between those who present
an unacceptable risk, then reliance on this factor is appropriate;
if the criterion is inaccurate or overbroad in the case of very old
convictions, then it is inappropriate for Title VII purposes.

                                30
      In support of its summary judgment motion, SEPTA
submitted the reports of three experts.17 All three rely heavily
on data from the Department of Justice that tracked recidivism
of prisoners within three years of their release from prison.
Indeed, those data show relatively high rates of recidivism in
those first three years. But what about someone who has been
released from prison and violence-free for 40 years? The DOJ
statistics do not demonstrate that someone in this position—or
anything like it—is likely to recidivate.18

     One of SEPTA’s experts was Dr. Alfred Blumstein, a
noted authority on recidivism. He stated:

           It is also the case that an individual’s
           propensity to commit a future violent
           crime decreases as that individual’s


  17
     El withdrew all objections to the experts’ qualifications for
purposes of SEPTA’s motion for summary judgment, so we, like
the District Court, assume that the experts are duly qualified to
offer admissible evidence.
  18
     SEPTA’s report from Dr. David Griffin, a statistician who
principally testified on whether its policy has a disparate
impact, relies entirely on these statistics. Moreover, Dr. Griffin
claimed no particular expertise in criminology or any relevant
discipline other than statistics. As we already address the
limitations of these statistics in discussing the other two experts,
we do not address further Dr. Griffin’s statements.

                                31
           crime-free duration increases. That is, an
           individual with a prior violent conviction
           who has been crime-free in the
           community for twenty years is less likely
           to commit a future crime than one who
           has been crime-free in the community for
           only ten years. But neither of these
           individuals can be judged to be less or
           equally likely to commit a future violent
           act than comparable individuals who have
           no prior violent history. It is possible that
           those differences might be small, but
           making such predictions of comparable
           low-probability events is extremely
           difficult, and the criminological discipline
           provides no good basis for making such
           predictions with any assurance that they
           will be correct.

App. at 953 (citation to DOJ statistics omitted) (emphasis
added).

     This statement bridges, as best it can, the gap between the
three-year statistics and El’s 40 year-old conviction. Because
Dr. Blumstein is a duly qualified professional criminologist and
because nothing in the record rebuts his statement, we must take
him at his word that former violent criminals who have been
crime free for many years are at least somewhat more likely than

                                32
members of the general population to commit a future violent
act. He notes that the difference between the probability that
someone with a remote conviction and someone with no
conviction will commit a future violent crime “might be small,”
but given the marked sensitivity of the paratransit position at
issue, a small but extant difference is sufficient. It is also
noteworthy that Dr. Blumstein reports that the criminological
discipline is incapable of distinguishing accurately between
violent criminals who are and are not likely to commit future
violent crimes. In other words, he believes that SEPTA’s policy
distinguishes as accurately as the criminological discipline
allows. Again, because we see nothing in the record rebutting
this statement, we must take Dr. Blumstein at his word.

     SEPTA also submitted the report of Dr. Dick Sobsey, an
education psychologist. Dr. Sobsey reported that disabled
people are proportionately more likely than others to be the
victims of violent or sexual crimes. He further reported that
employees of transportation providers commit a disproportionate
share of those crimes against disabled people. Like Dr.
Blumstein, Dr. Sobsey claims that the strength of violent
criminal activity as a predictor of future criminal activity
“moderates over time but remains regardless of how much time
passes.” App. at 920. Dr. Sobsey’s report, therefore, provides
evidence for SEPTA’s argument that paratransit positions are
extraordinarily sensitive, and that screening out individuals with
violent convictions—no matter how remote—is appropriate.



                               33
      Thus, 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. This is not to say
that we are convinced that SEPTA’s expert reports are ironclad
in the abstract. But El chose neither to hire an expert to rebut
SEPTA’s experts on the issue of business necessity nor even to
depose SEPTA’s experts. These choices are fatal to his claim,
for a party opposing summary judgment “cannot rest solely on
assertions made in the pleadings, legal memoranda, or oral
argument.” Berckeley Inv. Group, Ltd., 455 F.3d at 201. Here,
there is nothing in the record that raises any reasonable
credibility question about SEPTA’s expert evidence, rebuttable
as it may be. Thus, we must conclude that the reasonable juror
would believe those experts.

     Had El produced evidence rebutting SEPTA’s experts, this
would be a different case. Had he, for example, hired an expert
who testified that there is time at which a former criminal is no
longer any more likely to recidivate than the average person,
then there would be a factual question for the jury to resolve.
Similarly, had El deposed SEPTA’s experts and thereby
produced legitimate reasons to doubt their credibility, there
would be a factual question for the jury to resolve. Here,
however, he did neither, and he suffers pre-trial judgment for it.

     Despite not deposing SEPTA’s experts or hiring experts of
his own, El did produce evidence in the form of testimony from
SEPTA personnel through which he attempts to “rebut the

                               34
motion with facts in the record,” as Berckeley requires. Id. All
he brought out, however, was evidence that raises questions
about SEPTA’s care in formulating its hiring policy. In
response to El’s interrogatories, SEPTA named 11 employees
and former employees that could speak to the business necessity
of SEPTA’s policy. Of those 11, El deposed eight of them.
(The other three, El claims, had moved away and could not be
found. SEPTA does not dispute this characterization, nor does
it assert that these three would have provided materially
different testimony.) Reading through those depositions, it is
striking that not one of the witnesses that SEPTA named was
able to explain—beyond a general concern for passenger
safety—why this particular policy was chosen from among
myriad possibilities. See Dothard, 433 U.S. at 331. Even
Vincent Walsh, the drafter of the policy, could provide little
insight into how the policy was written, on what research or
information it was based, or why it was structured as it was.

      This inability is particularly striking given that the policy
SEPTA claims it applied makes distinctions among crimes,
setting apart some crimes for a lifetime ban from SEPTA
employment and applying a seven-year ban to others. If the
policy were developed with anything approaching the level of
care that Griggs, Albemarle, and Dothard seem to contemplate,
then we would expect that someone at SEPTA would be able to
explain how it decided which crimes to place into each category,
how the seven-year number was selected, and why SEPTA
thought a lifetime ban was appropriate for a crime like simple

                                35
assault. Almost all of El’s relevant questions about the policy
were met with silence from SEPTA personnel, suggesting the
reasonable inference that SEPTA has no real basis for asserting
that its policy accurately distinguishes between applicants that
do and do not present an unacceptable level of risk.

      Title VII, however, does not measure care in formulating
hiring policies; rather, it requires that an employer be able to
show that its policy is consistent with business necessity when
challenged. Granted, the two will typically go hand-in-hand.
Here, however, for all of SEPTA’s apparent loose manner in
formulating and defending its policy, it produced credible expert
testimony that its policy accurately screened out applicants too
likely to commit acts of violence against paratransit passengers.
El’s evidence (that SEPTA took little care in formulating its
hiring policy), through troubling, does not directly answer
SEPTA’s (that the policy, however little care went into
formulating it, is accurate because those who have committed a
violent crime, no matter how long ago, are more likely than the
members of the general population to commit a future violent
act). Therefore, El does not defeat summary judgment.

      El also submits the EEOC’s conclusion that SEPTA was
unable to establish the suitability of its policy, and that El’s
youth at the time of his conviction and the length of time since
that conviction, indicate that he would not pose a threat to




                               36
SEPTA’s passengers. Admissibility questions aside,19 the
EEOC determination is terse and simply asserts the relevance of
El’s youth and the remoteness of his conviction without
explanation, analysis, or authority. It provides nothing of
substance on which the jury could rely, and so its rebuttal of
SEPTA’s experts can create no more than a “scintilla” of
support for El’s position. Anderson, 477 U.S. at 252. Thus, it
is insufficient to create an issue of material fact.

     Taking all of the record evidence into account, there is no
substantive evidence on which a reasonable juror could find that
SEPTA’s policy is inconsistent with business necessity.
Summary judgment in SEPTA’s favor was, therefore,
appropriate.

             B.    The Alternative Policy Issue

     Also on appeal is the District Court’s grant of summary
judgment in favor of SEPTA on the alternative policy issue.
Under the Civil Rights Act, a Title VII plaintiff can prevail
despite an employer’s successful assertion of business necessity


  19
     EEOC determinations are relevant substantive evidence in
Title VII cases. Like all relevant evidence, they are excludable
under Federal Rule of Evidence 403 if substantially more
prejudicial than probative. Coleman v. Home Depot, Inc., 306
F.3d 1333, 1344–45 (3d Cir. 2002). The District Judge did not
rule on the admissibility of the determination in this case.

                              37
if the plaintiff points out an “alternative employment practice”
that (1) serves the employer’s legitimate goals as effectively as
the challenged practice, and (2) results in less of a disparate
impact. 42 U.S.C. § 2000e-2(k)(1)(A)(ii) (codifying the pre-
Wards Cove standard for showing the propriety of an alternative
employment practice); Albemarle, 422 U.S. at 425 (requiring
that the alternative practice be as effective as the challenged
practice and not have “a similarly undesirable racial effect.”);
see also Watson v. Fort Worth Bank, 487 U.S. 977, 997–78
(1988) (O’Connor, J.) (plurality) (stating that the alternative
practice must be as effective as the challenged practice). El
bears the burdens of proof and persuasion here. 42 U.S.C.
§ 2000e-2(k)(1)(A)(ii). As the Seventh Circuit Court of Appeals
has held, to prevail on this issue a Title VII plaintiff must come
forward with evidence that his proposed policy would have less
of a disparate impact. Allen v. City of Chicago, 351 F.3d 306,
315 (7th Cir. 2003).

     The District Court found no evidence in the record
indicating that any alternative policy would have less of a
disparate impact. Having reviewed the record, we agree.
SEPTA is thus entitled to summary judgment on this issue.

                       IV.    Conclusion

     Because no reasonable juror on this record could find that
SEPTA’s hiring policy is inconsistent with business necessity,
we affirm the District Court’s grant of summary judgment on

                               38
that issue. We also affirm the Court’s grant of summary
judgment on the alternative policy issue.




                          39
