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PA Bulletin, Doc. No. 09-2209



Proposed Adoption of Policy Guidance

[39 Pa.B. 6845]
[Saturday, November 28, 2009]

 The Pennsylvania Human Relations Commission, or PHRC, proposes the adoption of policy guidance titled, The Disparate Impact Discrimination Implications of a Denial of Employment Based on a Criminal Record. The proposed guidance is intended to provide assistance to public and private employers, employment agencies and labor unions in their efforts to comply with the employment provisions found in the Pennsylvania Human Relations Act (43 P. S. §§ 951—963).

 The proposed guidance, unlike PHRC regulations, does not have the full force and effect of law, but is meant to serve as a tool to help ensure equal opportunity for all who seek employment in this Commonwealth. Guidance is also intended as a preventative measure to reduce employment discrimination by helping jobseekers, employees and employers understand the implications of adopting hiring and job retention policies that may disparately impact racial minority job applicants and employees. Additional background documents in the form of Appendix A and Appendix B are available on the Commission web site at

Public Comments

 Public comments, prior to final consideration of the proposed guidance, will be received by the Commission for a period of 60 days ending on January 26, 2010. Comments may be submitted by e-mail to phrc@state. and should include the subject line, ''Comments on Proposed Policy Guidance.'' Comments can also be mailed to Homer C. Floyd, Executive Director, Pennsylvania Human Relations Commission, 301 Chestnut Street, Suite 300, Harrisburg, PA 17101-1702. Comments submitted by fax will not be accepted.

Consideration of Comments

 Commissioners will have the opportunity to review comments prior to consideration of final policy guidance, which is tentatively scheduled during their monthly public meeting, held February 22, 2010, at the address listed previously. The meeting begins at 1 p.m. and is open to the public. To determine whether consideration of comments will be on the agenda, contact the Commission the week prior to the meeting at (717) 787-4410.

Policy Guidance Concerning the Disparate Impact Discrimination Implications of a Denial of Employment Based on a Criminal Record

 Prepared by Pennsylvania Human Relations Commission. (Adopted by the Pennsylvania Human Relations Commission on _____ ).

The Policy Guidance

1. Presumption of Disparate Impact.

 It is the position of the Pennsylvania Human Relations Commission (PHRC or Commission) that an employer's policy or practice of excluding individuals from employment on the basis of a prior criminal conviction has a disparate impact on Blacks and Hispanics in light of statistics that demonstrate that they are convicted at a rate disproportionately greater than their representation in the population.1

 Given this position, when investigating complaints of alleged unlawful disparate impact discrimination presented by Black and Hispanic complainants that are otherwise jurisdictional, the PHRC will presume that the complainant has established the disparate impact element of a prima facie case of unlawful discrimination under Section 5 of the Pennsylvania Human Relations Act (PHRA).

 The PHRC takes the position that this presumption is warranted in light not only of national data demonstrating the disparity but also in light of data showing that Pennsylvania has a more pronounced racial disparity in its conviction and incarceration rates than the nation as a whole. Consequently, Black or Hispanic complainants alleging disparate impact based on an employer's conviction policy need not provide statistical evidence to establish the disparate impact element of a prima facie case.

2. Presumption of Disparate Impact is Rebuttable.

 To rebut the presumption of disparate impact, respondent employers, upon an appropriate showing of relevance, may utilize conviction data from a more limited geographical boundary than the Commonwealth of Pennsylvania (for example, the relevant city, census region or county) or conviction data for the specific crimes being screened by the respondent. In utilizing more narrowly drawn statistics, the Commission also will consider ''applicant pool'' data. The Commission notes, however, that there is an inherent likelihood that such ''applicant pool'' data will exclude otherwise interested applicants who chose not to apply due to the existence of an employer's conviction policy or practice and may thus have little persuasive effect. Moreover, in accordance with prior U.S. Supreme Court decisions, an employer cannot rebut a presumption of disparate impact by relying on evidence of diversity within its workplace (that is, the so-called ''bottom-line defense'').

3. The Business Necessity Defense.

 A respondent employer, in addition to being able to offer evidence intended to rebut the presumption, also may defend the existence of such a policy or practice by presenting evidence intended to prove that the policy or practice is required as a matter of business necessity.

 If a respondent employer's criminal records conviction policy has a disparate impact, it will not be deemed a violation of Section 5 of the PHRA if the employer can demonstrate that the policy is justified by business necessity. To demonstrate business necessity, an employer must show with ''some level of empirical proof'' that the individual excluded from employment has been convicted of a crime, not merely arrested2 , and poses an ''unacceptable level of risk.''

 Among the factors the Commission will consider in deciding whether the employer has provided evidence that amounts to ''some level of empirical proof'' that the disqualified individual poses an ''unacceptable level of risk,'' the Commission will consider the following:

 • The circumstances, number and seriousness of the disqualified individual's prior offense(s).

 • Whether the disqualified individual's prior conviction substantially relates to his or her suitability for the job. In determining whether the conviction relates to the job, the Commission will consider: (1) the duties and responsibilities of the job; and (2) the bearing, if any, of the applicant's prior criminal offense(s) on the applicant's suitability to assume these duties and responsibilities.

 • The length of time that has elapsed subsequent to the disqualified individual's conviction, or release from prison. Modern criminological research shows that the risk of recidivism clearly decreases with time. The Commission, therefore, will consider the length of time that has elapsed subsequent to the individual's conviction or release from prison. A presumption against business necessity will be established if an individual has not re-offended seven or more years prior to his or her disqualification (excluding time spent in jail or prison).

 • Evidence of the disqualified individual's rehabilitation, including:

satisfactory completion of all terms and conditions of parole and/or probation;
maintenance of steady employment since the conviction or release from prison;
educational attainment or professional training since the conviction;
completion of rehabilitative treatment (for example, alcohol or drug treatment);
letters of recommendation from employers, parole, or probation officers who have been in contact with the individual subsequent to his or her conviction or release from prison.

 • The manner in which the employer solicited the disqualified individual's criminal history during the hiring process. A hiring policy in which the employer considers the above-listed factors and does not inquire into, or consider, an individual's criminal background until later stages of the hiring process (for example, after the interview or after a conditional offer of employment has been made) will be looked upon favorably by the Commission.

4. Evidence of the Existence of alternative, less discriminatory measures.

 If the employer is able to demonstrate that the challenged employment disqualification policy or practice is justified by business necessity, a complainant may prevail on a disparate impact claim if he or she can demonstrate that there is an alternative, less discriminatory policy or practice available that would satisfy the employer's demonstrated business needs.

Overview of the Need for and Parameters of Policy Guidance Concerning the Disparate Impact Discrimination Implications Related to a Denial of Employment Based on a Criminal Record

1. Introduction.

 The Pennsylvania Human Relations Commission (hereinafter Commission or PHRC), cognizant of the fundamental guarantee found in the Pennsylvania Human Relations Act (hereinafter PHRA) that the opportunity to obtain employment is a civil right that must be provided irrespective of race, color, religious creed, ancestry, age, sex, national origin, non-job related disability or other protected classification sets forth the following Guidance for use by those responsible for providing employment opportunities within the Commission's jurisdiction. Those responsible for providing such employment opportunities include, but are not limited to, the Commonwealth or any political subdivision or board, department, commission or school district as well as any person employing four or more persons within the Commonwealth unless otherwise excluded under the PHRA and all others involved, whether directly or indirectly, in providing employment opportunities.

 The Commission, in proposing this Guidance, begins with the recognition that it is the expressed public policy of the Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their race, color, religious creed, ancestry, age, sex, national origin, non-job related disability or other protected classification found in the PHRA. The Commission further recognizes that to safeguard the right to obtain and hold employment without unlawful discrimination and to assure equal opportunities requires the elimination of policies or practices not only that result in disparate treatment but also that have a disparate or adverse impact on one or more protected classes under the PHRA within the parameters set forth in this Guidance.3

 The Commission notes at the outset that this Guidance, as is apparent from the Guidance Heading, is limited to delineating Guidance in the area of the disparate impact theory of proving discrimination. Such Guidance does not affect complaints alleging disparate treatment on a prohibited protected class basis with respect to an employer's use of a conviction record as a disqualification from employment. A complaint brought under the disparate treatment theory of discrimination is one that includes an allegation, for example, that an employer rejects African American applicants who have a conviction record but does not reject similarly situated Caucasian applicants. Complainants alleging disparate treatment regarding disqualification from employment based on a conviction record will continue to be processed in accordance with standard PHRC policies and procedures for investigating disparate treatment cases.

2. Parameters and Purpose of Policy Guidance.

 In proposing this Guidance, the Commission has set forth factors that it considers to be important in determining whether, in any given case, a party has engaged in unlawful disparate impact discrimination based on race, ethnicity or other protected classification in violation of Section 5 of the PHRA. In so doing, the Commission reiterates its longstanding position that this Guidance is not intended to impose hard and fast rules that must be absolutely applied without regard to the specific facts involved. The Guidance is intended to provide both guidance and assistance to those who come under the jurisdiction of the Commission as it continues its effort to ensure that the right to equal employment opportunities as set forth in the PHRA is achieved.

 Nothing in this Guidance shall affect statutory or regulatory requirements. The Guidance is neither an adjudication nor a regulation. There is no intent on the part of the PHRC to give the Guidance that type of binding force or effect. This Guidance indicates the manner in which the Commission intends to exercise its administrative discretion, unless it is convinced otherwise during the course of a specific proceeding. The Commission, as in the past, remains committed to ensuring that its adjudicative determinations are made on a case-by-case basis after consideration of all evidence of record in the given matter.

 To this end, the Guidance may be deviated from whenever the PHRC believes that any statute or regulation requires it, or that it is otherwise appropriate to do so. The Guidance may not be cited as binding legal authority for any PHRC ruling, adjudication or other legally binding action. The legal rationales set forth in a policy guidance may be cited as the basis for PHRC action to the extent that the Commission believes the rationale is valid in the context of the specific proceeding.

 The Commission recognizes that various State and Federal laws require some employers to obtain criminal records and reject applicants with certain convictions from employment. This Guidance is limited to delineating policy guidance in the area of the disparate impact theory of proving discrimination under the PHRA and has no impact upon these laws. Because of the above, and consistent with the underlying premise that policy guidance is intended to assist employers in complying with the law, attached to this Policy Guidance on the web site under Appendix A is an illustrative list of various State and Federal laws which require employers to reject applicants with certain convictions from employment. The Commission encourages employers who may be impacted by such laws to fully explore and understand the parameters of such laws, as well as any others that may be applicable, and to confine any employment restrictions solely to those parameters.

3. Summary of Need for the Issuance of the Policy Guidance.

 Criminal background checks have become a routine part of the hiring process throughout Pennsylvania and the United States. Whereas 51% of large employers used criminal background checks in 1996, 80% of large employers utilized them in 2003, and the percentage is likely even greater today. Due to the increased use of criminal background checks for screening prospective and current employees, a growing number of Americans are being excluded from employment opportunities on the basis of having a prior criminal record. In Pennsylvania, legal services organizations such as Community Legal Services (CLS) report that job applicants with criminal records are routinely facing ''unwarranted stigmatization'' by employers—in contravention to the public policy of the Commonwealth.

 Employment policies or practices that disqualify individuals from employment on the basis of a prior criminal conviction may violate State and Federal civil rights statutes. While such hiring policies are facially neutral they can produce a severe disparate impact on Black and Hispanic populations due to the significantly higher rates of criminal convictions experienced by these populations.

 At the Federal level, the Equal Employment Opportunity Commission (EEOC) has issued a Policy Statement advising that hiring policies which exclude individuals from employment on the basis of a prior conviction are ''unlawful under Title VII in the absence of a justifying business necessity.'' Federal courts, including the Third Circuit, have interpreted Title VII in a similar manner as the EEOC. However, the Commission has yet to issue any guidance on the acceptable considerations of a criminal background under the PHRA.

 Because current data from Pennsylvania indicates that racial minorities have significantly higher rates of conviction and incarceration than Whites and that this in-state racial disparity is significantly more pronounced than the national average, the exclusion from employment of individuals with prior convictions in Pennsylvania is having a disparate impact on protected classes under the PHRA. According to CLS, the unwarranted use by employers of criminal background information remains the ''most significant'' issue of employment discrimination faced by their clients.

 Among the data reviewed by the Commission in connection with its decision to consider adopting this Policy Guidance are the following:

 • As of June 2008, Black Americans were incarcerated in State and Federal prisons at a rate 6.5 times higher than Whites.

 • The Department of Justice estimates that the lifetime chance of a Black male going to prison is 32.6%. The lifetime chance for an Hispanic male is 17.2%. By contrast the respective rate for White males is 5.9%.

 • The rate of incarceration in State prisons and local jails is higher for Blacks than Whites in every single state.

 • Blacks have a higher jail incarceration rate than Whites for every violent offense, property offense, and drug offense measured by the Department of Justice.

 The disparity in incarceration and conviction rates between Black, Hispanic and White Americans is more pronounced in the Commonwealth of Pennsylvania than it is for the nation as a whole. For example:

 • The Pennsylvania incarceration rate for Blacks is 9.2 times higher than the incarceration rate for Whites in State prisons and local jails.

 • Only 9 other states have a more pronounced disparity in incarceration rates between Blacks and Whites than Pennsylvania.

 • The Pennsylvania incarceration rate for Hispanics is 5.6 times higher than the incarceration rate for Whites in State prisons and local jails. Only one other state has a greater disparity.

 • Although minorities comprise less than 14% of the Pennsylvania population, they received 32% of the convictions issued in 2007.

4. PHRC Executive and Legal Staff Review of the Policy Guidance.

 Commission staff, prior to development of the proposed Policy Guidance, prepared and presented to Commissioners a Proposed Policy Guidance memorandum on the issue of disqualification from employment based on criminal records history. Additionally, Commissioners had the opportunity to hear presentations from staff involved in the matter as well as an attorney from Community Legal Services who had previously presented testimony to the Equal Employment Opportunity Commission on the subject of disqualification from employment based on criminal records history.

 Development of the Policy Guidance springs from and is framed by the aforementioned memorandum. Reliance on the memorandum is deemed appropriate because of its review for content and legal sufficiency by members of the Executive Staff and by the Office of Chief Counsel. Following said reviews, a joint recommendation for adoption of the Policy Guidance in a manner consistent with the information provided in the memorandum was made to the Commissioners by the Executive Director and Chief Counsel. Based upon the recommendation, and after review of the material provided, Commissioners directed the Executive Director and Office of Chief Counsel to prepare a proposed Policy Guidance consistent with the analysis and recommendations found in the memorandum for consideration by the Commissioners.

 Because of the above, and consistent with the underlying premise that any Policy Guidance is intended to assist employers in complying with the law, attached to the Policy Guidance on the web site under Appendix B and incorporated by reference into said Guidance to the extent not otherwise set forth is a copy of the staff memorandum.

Executive Director

[Pa.B. Doc. No. 09-2209. Filed for public inspection November 25, 2009, 9:00 a.m.]


1 As is more fully discussed in Section 2 of the Overview of the Need for and Parameters of the Policy Guidance which follows the Policy Guidance, nothing in the Policy Guidance is intended to prohibit employers from denying employment based on a criminal record where required or authorized to do so based on existing State or Federal laws.

2 Arrests which have not led to conviction should virtually never be considered for hiring purposes within the Commonwealth of Pennsylvania. The Pennsylvania Superior Court held that 18 Pa.C.S.A. § 9125—based on its legislative history—precludes employers from considering arrests not leading to conviction. See Cisco v. United Parcel Services, 476 A.2d 1340 (Pa. Super. 1984).

3 The terms ''disparate impact'' and ''adverse impact'' as they may appear in the Guidance have the same meaning and may be used interchangeably.

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