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, 479 F.3d 232

Summary

The employee argued that the employer's hiring policy had a disparate impact: because African Americans and Hispanics were more likely to have a criminal record, they were more likely to run afoul of the policy. In support of its motion, the employer submitted three expert reports. All three relied on data from the Department of Justice that tracked recidivism of prisoners within three years of their release from prison. Indeed, those data showed relatively high rates of recidivism in those first three years. The court found that, on the record, it had little choice but to conclude that a reasonable juror would necessarily find that the employer's policy was consistent with business necessity. The court reasoned that the employee chose neither to hire an expert to rebut the employer's experts on the issue of business necessity nor even to depose the employer's experts. Thus, as there was nothing in the record that raised any reasonable credibility question about the employer's expert ...