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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.

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