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).

Continue Reading Pennsylvania Human Relations Commission Extends Deadline for Comment Submissions Regarding its Proposed Criminal History Information Policy Guidance

This post was also written by Miriam S. Edelstein.

The Pennsylvania Human Relations Commission (“PHRC”) has proposed “Policy Guidance” stating that it intends to treat an employer’s rejection of an African-American or Hispanic applicant because of his or her criminal record as presumptive evidence that the employer is discriminating against the applicant in violation of the Pennsylvania Human Relations Act (“PHRA”).

The proposed Policy Guidance potentially presents significant new hurdles for Pennsylvania employers as they attempt to strike the correct balance between instituting security-minded and non-discriminatory hiring practices. This is particularly critical in fields that are highly regulated by federal, state and administrative bodies. Employers in regulated industries are already bound by a myriad of statutory, regulatory and court authority that includes prohibitions against employing individuals convicted of specific offenses in certain occupations.

The PHRC is seeking public comments regarding the proposed Policy Guidance by January 26, 2010, so that it can consider them before deciding whether to adopt the final Policy Guidance on February 22, 2010. A copy of the proposed Policy Guidance can be found on the PHRC’s website,  and includes instructions for submitting comments. Please read on for further information regarding the potential issues the proposed Policy Guidance raises for Pennsylvania employers, and suggestions of points to include if you choose to submit comments to the PHRC.

Continue Reading Pennsylvania Human Relations Commission Proposes Policy Guidance That Would Presume Employers Engage in Disparate Impact Discrimination When They Use Criminal History Information

In one of its most significant employment discrimination decisions in years, the U.S. Supreme Court held this week that if an employer discovers that a test it has given to employees would screen out a statistically significant number of women or minorities, the employer cannot scrap the test based on a fear that it will be sued for discrimination by those who did not pass the test, unless it can show a “strong basis in evidence” that it would actually lose such a suit. Throwing out the test results without such a showing, the Court held, would unlawfully discriminate against those who did well on the test based on their race or sex. Ricci v. DeStefano, Nos. 07-1428 and 08-328 (June 29, 2009).


The City of New Haven, Connecticut (the “City”), used a written test to help decide which firefighters would be eligible for certain promotions. The results showed that the test had a statistically significant adverse effect on African-Americans. Not only was the passing rate for black firefighters only about half of what it was for whites, but also none of the employees with top scores – the only ones eligible for promotion under City rules – was black. Concerned that using the test would lead black employees to file, and probably win, a suit alleging that the test had a discriminatory “disparate impact” based on race, the City decided not to use the test. In what likely appeared to the City as a case of “damned if you do, damned if you don’t,” it was then sued by 18 firefighters (17 whites and one Hispanic) who had passed the test, alleging that the City had discriminated against them, based on race, by refusing to use the test and thus denying them a chance at promotions.

Continue Reading Supreme Court Creates New Risk For Employers Who Use Tests or Other Screening Devices