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SEPTA Applicants Fight To Keep Alive Background Check Suit

Jul 25, 2016 / Media Coverage / Law360 — Matthew Bultman

Three men fought Friday to keep alive a proposed class action accusing the Southeastern Pennsylvania Transportation Authority of violating federal law in its use of consumer reports, insisting they suffered real harm by the authority's invasion of their privacy.

The plaintiffs, who also claim SEPTA discriminates against job applicants with drug convictions, were responding after the regional public transportation authority recently asked a judge in Pennsylvania's Eastern District to dismiss the lawsuit.

SEPTA contends, in part, that the group hasn't shown it was harmed by the alleged violations of the Fair Credit Reporting Act.

But the men argued the injuries they have alleged, namely "SEPTA's deprivations of plaintiffs' rights to privacy and information," are exactly the sort of harms Congress enacted the law to protect against.

"SEPTA fails to support its argument that plaintiffs have not suffered particular harm and does not dispute plaintiffs' well-pled allegations of particularized harm," they wrote.

The lawsuit, originally filed in April, is being led by three men — Frank Long, Joseph Shipley and Michael White — who had applied for positions as a bus operator or railroad supervision manager with SEPTA in the past two years.

They allege SEPTA didn't provide them, and potentially thousands of other applicants, with the proper written disclosure stating they could be subject to a consumer report, as required by the FCRA.

SEPTA is also accused of violating Pennsylvania's Criminal History Record Information Act through a blanket policy of rejecting any applicant with a felony drug conviction for a job involving the operation of vehicle.

Long, for example, was working as a bus driver with a Philadelphia school bus company when he applied in 2014 for a similar position with SEPTA. He claims he was initially offered the job but was then rejected because of a 1997 conviction for drug possession and manufacturing.

He argues the conviction should have no bearing on the position because of the nature of the crime, as well as the length of time he went without further convictions.

SEPTA last month asked the court to dismiss the complaint, in part because it said the plaintiffs hadn't shown a "concrete and particularized injury" that they suffered as a result of the purported FCRA violations.

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With respect to the alleged CHRIA violations, SEPTA argued the plaintiffs hadn't shown that it willfully violated the law. It drew parallels to a 2007 case, known as El, in which the Third Circuit ruled a SEPTA policy that prohibited anyone with a homicide conviction from providing paratransit service was justified "by business necessity."

This and other cases "are analogous to SEPTA's legitimate public objective of protecting passengers of its transit system," it wrote.

Responding on Friday, Long and the other past applicants said it was important to note that the Third Circuit in El expressed "serious reservations" about SEPTA's blanket exclusionary policy. And unlike that case, the workers here are challenging a hiring policy not related to violent offenses, they said.

"To the extent SEPTA maintains that certain drug convictions forever disqualify applicants when the job involves the operation and/or maintenance of a SEPTA vehicle, that policy is unsustainable in light of repeated Pennsylvania cases recognizing that lifetime job bans are unreasonably broad," they wrote.

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The plaintiffs are represented by Ossai Miazad, Adam T. Klein, Lewis M. Steel, Christopher M. McNerney and Cheryl-Lyn Bentley of Outten & Golden LLP; Jon Greenbaum and Mateya Kelley of the Lawyers' Committee for Civil Rights Under Law; Michael Lee and Michael Hardiman of Philadelphia Lawyers for Social Equity; Benjamin D. Geffen of the Public Interest Law Center; and Ryan Allen Hancock and Danielle Newsome of Willig Williams & Davidson.

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The case is Long v. Southeastern Pennsylvania Transportation Authority, case number 2:16-cv-01991, in the U.S. District Court for the Eastern District of Pennsylvania.

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