According to the Pennsylvania Human Relations Commission (PHRC), it could be.

The PHRC recently proposed “Policy Guidance” essentially indicating that any employer who rejects an African American or Hispanic applicant because of a criminal record will be presumed to have discriminated against the applicant in violation of the PA Human Relations Act.

And, in an ironic twist of disparate application by the agency charged with enforcing anti-discrimination laws in Pennsylvania, an applicant rejected on the basis of any other race or national origin apparently won’t have the benefit of the same presumption under this guidance.

According to the Commission, they issued the proposed Guidance because both state and national statistics indicate that Hispanic and African American individuals have an excessive and disproportionate rate of conviction. Essentially, because persons in those classes have been convicted more, their applications are more likely to be rejected because of those convictions.

Under the Guidance, Pennsylvania employers would be able to rebut the presumption of discrimination, but only under limited circumstances. They also would have a defense to the presumption if they were able to show business necessity. However, requiring a showing of “necessity” to why an applicant was rejected based on a conviction would seem, at least in many cases, to beg the question.

For the time being, until the Policy Guidance is actually adopted by the Commission – and there’s been no word of that yet, despite the completion of a public comment period a few months ago — consideration in the application process of convictions by individuals of all races and forms of national origin does not automatically add up to discrimination.

Still, if this Guidance is officially adopted by the PHRC, employers based in Pennsylvania or who do business in Pennsylvania will certainly have to review and re-analyze how they evaluate their applicants for employment, or else expose themselves to a greater likelihood of liability for simply attempting to justifiably exclude convicted felons from their workforce.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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