Interviewing and Selecting Job Candidates: Pennsylvania
Federal law and guidance on this subject should be reviewed together with this section.
Author: Christin Choi, Fisher Phillips
- The Pennsylvania Human Relations Act (PHRA) prohibits employers with four or more employees from refusing to hire an individual or independent contractor based on a host of protected characteristics. See PHRA Prohibitions.
- During the interview and selection process, employers should ask only those questions that are related to a potential employee's job qualifications and/or to a specific job-related purpose. See Interview Questions.
- Employers may consider job applicants' felony and misdemeanor convictions only to the extent such convictions relate to the applicant's suitability for employment in the position for which he or she has applied. See Arrest and Conviction Records.
- Employers are not required to provide job references for current or former employees. Employers may, however, disclose information about a current or former employee's job performance upon request of the prospective employer or the current or former employee. See Job References.
- Philadelphia has requirements pertaining to interviewing and selecting job candidates. See Local Requirements.
The Pennsylvania Human Relations Act (PHRA) prohibits employers from refusing to hire an individual or independent contractor on the basis of race, color, religious creed, ancestry, age (40 years or older), sex, national origin, non-job related handicap or disability, or the use of guide or support animals because of blindness, deafness or physical handicap.
The PHRA defines "employer" as including any person employing four or more persons within the Commonwealth. The term "employer" does not, however, include religious, fraternal, charitable, or sectarian corporations or associations, except those corporations or associations that are supported by governmental appropriations. All employers, labor organizations and employment agencies subject to the PHRA must post a notice about the law's employment provisions in a location normally frequented by job applicants and employees.
With respect to discrimination on the basis of race, color, age, sex, national origin, or non-job related handicap or disability, the term "employer" does include religious, fraternal, charitable, or sectarian corporations or associations. +43 P.S. § 954. However, religious corporations or associations are exempt from the prohibition against hiring or employment on the basis of sex in cases where sex is a bona fide occupational qualification due to the religious beliefs, practices or observances of the religious corporation or association. +43 P.S. § 955.
During the interview and selection process, employers should limit questions to topics that are related to a potential employee's job qualifications and/or to a specific job-related purpose. Employers generally may not ask questions concerning an applicant's race, color, religious creed, ancestry, age, sex, national origin, past handicap or disability, or the use of a guide or support animal because of the blindness, deafness or physical handicap of the applicant. Some city ordinances go even further. See Recruiting and Hiring > Recruiting: Pennsylvania > City Ordinances.
In addition, employers may not ask if an individual has a handicap or disability or about the severity of such a handicap or disability. Employers may ask about an individual's ability to perform the essential functions of the employment. +43 P.S. § 955(b).
The Pennsylvania Human Relations Act (PHRA) does allow an employer to discriminate if it can show that one of the above protected characteristics is a bona fide occupational qualification (BFOQ) needed for the normal operation of its business. However, the burden of proof rests with the employer, and the statute itself states that the BFOQ exception "will have limited scope and application." Stereotyped assumptions, such as about a job applicant's mechanical ability or aggressiveness based on race, sex or national origin for example, will not justify an exception. +16 Pa. Code § 41.71.
Arrest and Conviction Records
In Pennsylvania, employers may not ask about or consider a prospective employee's arrest records, juvenile adjudications and summary offense convictions. Furthermore, employers may not ask about or consider criminal records that have been expunged.
During the hiring process, employers may only consider job applicants' felony and misdemeanor convictions to the extent that such convictions relate to the applicant's suitability for employment in the position for which he or she has applied. If an employer decides not to hire an applicant based, in whole or in part, on criminal history record information, the employer must notify the applicant in writing. +18 Pa.C.S. § 9125.
Employers may be required to consider an applicant's criminal history record in certain circumstances, including situations in which the employer seeks to employ individuals in:
- Public and private schools;
- Other roles where the individual will have regular contact with children;
- Health facilities; and
- Roles as a private detective or investigator. See Recruiting and Hiring > Preemployment Screening and Testing > Background Checks.
During the selection process, employers may not use a quota system to deny or limit employment based on any protected category. +43 P.S. § 955.
Employers are not required to provide job references for current or former employees. Employers may, however, disclose information about a current or former employee's job performance upon request of the prospective employer or the current or former employee. Employers cannot disclose information that:
- The employer knew, or through due diligence should have known, was false;
- The employer knew was materially misleading;
- Was false and rendered with reckless disregard as to the truth or falsity of the information; or
- Is protected from disclosure by any contract, civil or common law, or statutory right, of the current or former employee.
Philadelphia Ban the Box
The Philadelphia "ban the box" ordinance covers employers in the city regardless of size. Previously, the Fair Criminal Record Screening Standards ordinance was limited to employers that employed 10 or more persons within the city.
The amended law also prohibits employers from asking about an applicant's criminal history or conducting a background check until a conditional employment offer has been made. This offer may be withdrawn only if the employer determines that the applicant has a conviction record which, based on an individualized assessment, would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position.
The individualized assessment must include:
- The nature of the offense;
- The time that has passed since the offense;
- The applicant's employment history before and after the offense and any period of incarceration;
- The particular duties of the job being sought;
- Any character or employment references provided by the applicant; and
- Any evidence of the applicant's rehabilitation since the conviction.
Philadelphia's "ban the box" law also notes that employers can only go back seven years in considering an applicant's criminal record. In addition, the ordinance bans employers from adopting a blanket policy that automatically excludes an applicant with a criminal conviction from a particular job or class of jobs.
And, it includes a penalty provision that can subject employers to up to $2,000 in punitive damages per violation while also permitting applicants to file a private right of action. A very limited exemption is provided for employers that are required to conduct background checks, such as schools and health care facilities.
An employer must post a notice in plain sight on the employer's website and premises providing a summary of the ordinance's requirements.
Philadelphia Salary History Ordinance
On April 30, 2018, a federal judge in Pennsylvania ruled that Philadelphia's ban on salary history questions violates the First Amendment. However, US District Judge Mitchell S. Goldberg also called the Philadelphia ordinance "a significant positive attempt to address the wage gap," and upheld a separate provision that forbids employers from basing hiring decisions on salary history.
Philadelphia became the first US city to adopt a salary history inquiry in January 2017, but the ordinance has been on hold pending this legal challenge by the Chamber of Commerce for Greater Philadelphia seeking an injunction.
Under this amendment to Philadelphia's Fair Practices Ordinance, employers would be prohibited from:
- Asking about or requiring a prospective employee to disclose his or her wage history;
- Conditioning employment or consideration for a job interview on the disclosure of wage history;
- Retaliating against a prospective employee for failing to comply with any wage history inquiry; or
- Relying on the wage history of a prospective employee from any current or former employer to determine the individual's wages at any stage in the employment process.
In its ruling, the court held that the ordinance's reliance provision - making it unlawful for employers, employment agencies, or their employees or agents to rely on a prospective employe''s wage history to determine his or her salary - withstands constitutional scrutiny. The court reasoned that an employer's reliance on wage history is not speech. Chamber of Commerce for Greater Phila. v. City of Phila., +2018 U.S. Dist. LEXIS 72758.
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