In 1960, a 15-year-old Philadelphia teenager got involved in a gangfight that led to someone's death, even though he claimed he wasn't the one who pulled the trigger. The teenager served less than four years for the crime and kept a clean record from then on. But his story made a big impact on the law and on the U.S. Equal Employment Opportunity Commission's new guidelines on how to handle employment of people with criminal records.
Released Wednesday, the guidelines talk about the case of Douglas El, who challenged SEPTA's policy of barring anyone convicted of a violent crime (in his case, second-degree murder) from holding a job as a paratransit driver. El was 55 years old in 2000, when SEPTA hired him as a driver for paratransit passengers who have physical and mental disabilities. A few weeks later, he was fired.
He sued SEPTA in federal court, lost on the first round and also lost on the appeal, mostly because El never offered an expert witness who could talk about the likelihood of him harming these particularly vulnerable passengers. The EEOC's guidelines mention the case and the 2007 decision by the U.S. Third Circuit Court of Appeals. The EEOC noted that the court expressed "reservations" about a blanket exclusion policy like SEPTA's. The appellate judges said that the U.S. Civil Rights Act of 1964, which prohibits discrimination, requires employers to justify criminal record exclusions (which are, at heart, about mitigating risk). Employers, the court said, "must accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not."
"El was clearly a motivation for this to happen, because the 3rd Circuit concluded that the EEOC's policy was too sketchy for it to be entitled to any deference by the courts," said Sharon Dietrich, a managing attorney for Philadelphia's Community Legal Services and the author of an amicus brief in the case. Dietrich, who heads the group's employment practice, and her colleagues have become national experts on the issue of employment of people with criminal records.