Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts

broadly applied, had a disparate impact on those who were African-American

and Hispanic. The EEOC investigated and found in favor of El.

El then filed suit in federal district court for disparate impact under Title VII.

The district court granted SEPTA’s motion for summary judgment The Court of

Appeals affirmed.

First, the court noted that while a criminal conviction for violent offense has

nothing to do with an applicant’s ability to drive a paratransit bus, to the extent

that SEPTA can show a necessity to keep its passengers safe, there may be a

business necessity for the policy. In addition, the court noted that SEPTA did

have a narrow policy to the extent that it did not place a time length on

convictions for crimes of moral turpitude or violence, but it did put a time

length on convictions for other enumerated crimes that were less job-related.

Second, the court found that SEPTA had sufficiently proved that a reasonable

juror would find that SEPTA’s policy was consistent with business necessity.

Lastly, as El did not provide any evidence of an alternative policy that served

SEPTA’s legitimate goals as effectively as its current policy but which resulted

in less of a disparate impact, SEPTA had adequately established the affirmative

defense of business necessity to confer summary judgment.

Josephs v. Pacific Bell

303

Plaintiff was initially discharged because of his failure to properly disclose his

prior convictions on his employment application. He sued PacBell for unlawful

termination of employment and unlawful refusal to reinstate in violation of the

ADA and FEHA based on allegations that PacBell both terminated and refused

to reinstate him because it regarded him as mentally disabled.

At trial, the evidence showed that three other PacBell employees had been

terminated for failure to disclose prior criminal convictions on their

employment applications but, unlike plaintiff, they had been reinstated or

offered a conditional reinstatement. There was also evidence that PacBell’s

management had looked up and discussed with various PacBell employees news

reports that plaintiff had been treated and released from the state mental hospital

and was a “mentally disordered sex offender.” The jury determined by special

verdict that PacBell’s termination of plaintiff was non-discriminatory.

However, the jury determined that PacBell refused to reinstate plaintiff because

it regarded him as mentally disabled in violation of the ADA and awarded

compensatory damages. The Ninth Circuit Court of Appeals affirmed and

recognized discriminatory failure to reinstate as a separately actionable claim.