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Disparate Impact

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We don't often comment on employment law on this blog, but I suppose it was only a matter of time before "disparate impact" litigation was extended to its logical extreme.* The Southeastern Pennsylvania Transportation Authority doesn't want Douglas El as a bus driver to drive around people with mental and physical disabilities because he is a murderer. El claims this constitutes discrimination on the basis of race. "[H]e argued that the policy has a disparate impact: because African Americans and Hispanics are more likely to have a criminal record...." The Third Circuit did not reject this claim out-of-hand, but only because of a lack of evidence on El's part. (Hat tip: Decision of the Day.)

It is true that this is a very old murder conviction entered when El was very young. Even so, it's still a murder conviction, and the notion that the Civil Right Act prohibits an employer from discriminating between criminals and law-abiding people, especially when hiring employees to care for particularly vulnerable people, strikes me as bizarre.

*"All rights tend to declare themselves absolute to their logical extreme." Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (Holmes, J.).

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A couple thoughts:

1) What about the interests of the customers? Modern social work theory speaks in terms of people being served as "clients". Certainly, this ethos can be taken into consideration when examining the "business necessity" of excluding murderers. Would you want to be driven around by a convicted murderer? And what's the difference between this case and school bus drivers? Certainly, it would be a rare court that would force (on pain of discrimination awards) school bus companies to hire convicted murderers.

2) To Kent's point, there's something problematic about the court's undermining of a business' decision to simply not associate itself with criminals. Criminal behavior has a social context, and certainly, the opprobrium attached to it is part of a general deterrence against committing crimes in the first place. Certainly, actors in society have the right to express such opprobrium, and the fact that crime varies across ethnic groups should not make employment discrimination against criminals taboo.

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