Table of contents
Introduction
Title VII prohibits hiring practices that (1) have a racially-disparate impact but (2) are not justified by business necessity. In the area of background checks, appellate courts consistently recognized the legitimacy of business necessity in ensuring public safety but required that the business necessity be shown by empirical evidence and that no alternative policy with less discriminatory impact exist. See Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D.CA 1970) ("In this context, ‘business necessity’ means that the practice or policy is essential to the safe and efficient operation of the business.") (citing Local 189 v. United States, 416 F.2d 980 (5th Cir. 1969).
Positive Authorities
In Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975), the court dismissed MoPac’s claim of business necessity, because MoPac failed to empirically validate its policy with respect to conviction records. Thus finding no business necessity, the Court held that MoPac violated Title VII by its policy of refusing to hire anyone with a criminal conviction other than minor traffic offenses.
In Gregory v. Litton Systems, Inc., 316 F.Supp 401 (C.D.CA 1970), the trial judge found no evidence that persons with multiple arrests on their record perform less honestly or less efficiently than other employees. Thus the company’s standard policy of not hiring individuals with a number of arrests had no business necessity and was found to be in violation of Title VII.
Negative Authorities
In Douglas El v. SEPTA, 479 F.3d 232 (3d Cir. 2007), the Court adapted the Griggs reasoning to newly define the constitutional requirement for public-safety criteria, holding that the criteria "must distinguish with sufficient accuracy between those who pose that minimal level of risk and those who pose a higher level." The Court then went on to hold as a matter of law that "a small but extant difference" of additional safety risk is enough to satisfy the business necessity requirement, because the plaintiff failed to provide evidenceto counter the defendant's expert testimony regarding the continued risk of violence posed by people with violent criminal background.
In Richardson v. Hotel Corp. of America, 332 F.Supp. 519 (D.C.La. 1971), the trial judge found that the position of hotel bellmen are "security sensitive" and thus may be denied on the basis of business necessity to the plaintiff, who had been convicted of theft and of receiving stolen goods.
- Tag page
-
- What links here
