At the invitation of the Pennsylvania Human Relations Commission (PHRC), the Law Center submitted comments in January 2010 on new proposed legal guidance regarding the use of criminal records checks to exclude job applicants.

Under the guidance, the PHRC will presume that an employer’s policy of excluding applicants based on a record of a criminal conviction disparately impacts minority applicants. In our comments, we suggest modifications designed to encourage employers to more carefully tailor any use of record checks to specific job requirements.

The Law Center’s recommendations include:

1. When an employer inquires into an applicant’s criminal record early in the hiring process, a disparate negative impact on minority applicants should be presumed.
2. Define and clarify when a past crime is substantially related to a job. Using this standard, PHRC should encourage employers to narrowly tailor their inquiries to specific crimes or categories of crimes that they have determined are substantially related.
3. The Commission should not consider applicant pool data, which allows an employer to rebut a presumption of disparate impact with information about the applicant pool through easily manipulated and misleading data.

PHRC’s proposed policy
Our comments