This post was also written by Miriam S. Edelstein.

The Pennsylvania Human Relations Commission (“PHRC”) has extended the comment period to March 2, 2010 for its proposed “Policy Guidance” that would create the presumption of disparate impact discrimination when an employer uses criminal history information of African-American or Hispanic applicants/employees as the basis for any adverse employment-related decision. Employers in highly regulated industries may want to submit comments either individually or through an advocacy group within their industry.

The extension of the deadline appears to have come in response to urging by those in highly regulated industries for additional time to inform the Commission of the numerous laws, regulations and other authority requiring that such employers exclude from certain occupations individuals convicted of specific criminal offenses. In addition to the information in our first Alert regarding this Policy Guidance and the potential areas for comment, please read on for suggestions to employers when submitting comments. A copy of the proposed Policy Guidance can be found on the PHRC’s website, and includes instructions for submitting comments. (Note: At the time of this posting, the proposed Policy Guidance submission information had not been updated to reflect the extended deadline for comments).

The PHRC’s proposed criminal history Policy Guidance presumes that an employer’s consideration of criminal history information in making employment decisions regarding African-American or Hispanic applicants/employees constitutes evidence of disparate impact discrimination. This new presumption is particularly troubling for employers in highly regulated industries that are subject to statutes, regulations and/or court cases prohibiting employment of individuals who have been convicted of specific criminal offenses in certain occupations.

The proposed guidance includes a specified list of various federal and state laws that the Commission recognizes as restricting the employment of individuals convicted of certain criminal offenses. (See “Appendix A” to the PHRC’s proposed Policy Guidance). Accordingly, employers may rely on these specified laws as a valid “business necessity” defense to overcome the presumption of disparate impact discrimination. A quick glance at this list, however, reveals that it is far from exhaustive and thus problematic for employers in industries that must comply with statutes, regulations and other authority not included in the Commission’s current proposed guidance.

Fortunately for employers who may be affected by the Policy Guidance, the Commission has extended the deadline for submitting public comment to March 2, 2010. (Note: At the time of this posting, the proposed Policy Guidance submission information had not been updated to reflect the extended deadline for comments.)

Factors An Employer Should Consider When Commenting

• Employers and advocacy groups in highly regulated industries should review the proposed Policy Guidance and, in particular, Appendix A, to ensure that the Commission is aware of all authority restricting employment in their industry on the basis of criminal convictions. Industries that are subject to specific regulation include health care, law enforcement, corrections, securities and finance, education, private security, telecommunications, energy and child care. If you are an employer in one of the aforementioned industries, or otherwise subject to statutes or regulations regarding employment of ex-offenders, you may consider submitting through an industry advocacy group all regulations applicable to your industry for the Commission’s consideration so that it is fully apprised of your industry’s legal landscape when finalizing the Policy Guidance. If the current Appendix A is adopted by the Commission, employers may be presumed to be discriminating against applicants merely because they are following valid laws governing their industries that do not currently appear in the Commission’s guidance.
• Just as employers must stay current with changes to governing authority in their respective industries, we advise that employers emphasize the changing nature of laws and regulations in their comments submitted to the Commission. Clearly, if the Commission is to look to an enumerated list of valid legal authority, such a list would have to be regularly checked against legislative, regulatory and court action that may modify employers’ obligations to conduct criminal background checks on applicants and employees. The sheer breadth of legal authority that the Commission would have to monitor suggests that the Commission should refrain from including Appendix A in its guidance. The possible omissions in such a list would place an unwarranted burden on employers to demonstrate that, though a specific law or regulation may not appear in Appendix A, the employers are nonetheless adhering to valid legal authority.

If you would like to submit comment to the PHRC, or would like further analysis of the proposed Policy Guidance and potential implications for your industry, please consult our original Alert, and/or contact us for assistance in drafting a submission that will address your important concerns to the Commission, preserve goodwill with the agency, and positively impact the final Policy Guidance.