Pennsylvania Code › Title 16 - COMMUNITY AFFAIRS › Part II - Governor's Office › Subpart A - Human Relations Commission › Chapter 41 - PRELIMINARY PROVISIONS › Subchapter A - GENERAL PROVISIONS › BONA FIDE OCCUPATIONAL QUALIFICATIONS › Section 41.73 - Supplementary interpretations regarding bona fide occupational qualification standards

Current through Register Vol. 54, No. 28, July 13, 2024
(a) An
						employer, employment agency or union may request from Commission staff, a
						supplementary interpretation regarding bona fide occupational qualification
						standards as applied to a specific position. A supplementary interpretation
						issued under this section shall be made in the absence of a complaint and will
						not constitute a final or interlocutory order of the Commission.
(b) Requests for a supplementary
						interpretation shall be submitted in writing to the headquarters office of the
						Commission at 100 North Cameron Street, Harrisburg, Pennsylvania 17101. The
						requests shall include, but not be limited to, a description and analysis of
						the job in question, and the number of positions available or anticipated. The
						requesting party shall also state with precision his justification that all or
						substantially all persons of a designated class cannot satisfactorily perform
						the functions essential to the position for which the supplementary
						interpretation is requested. The requesting party shall make appropriate
						references to guidelines, regulations, decisions or court opinions and shall
						include other relevant supportive materials. The Commission staff may request
						whatever additional information it deems necessary from the employer,
						employment agency or labor union seeking a supplementary interpretation. On the
						basis of the facts submitted, as well as other information available to them,
						the Commission staff will inform the party of its interpretation, if
						practicable.
(c) A supplementary
						interpretation is given without prejudice to the right of the Commission to
						reconsider the questions involved and, where the public interest requires, to
						rescind or revoke the advice. Notice of the rescission or revocation will be
						given to the requesting party so that the party may discontinue the course of
						action taken under the supplementary interpretation. The Commission will not
						proceed against the requesting party with respect to an action taken in good
						faith reliance upon the interpretation provided under this section; where
						relevant facts were fully, completely and accurately presented; where the facts
						subsequently developed are not materially different from the facts upon which
						the supplementary interpretation was based, such as a change in the duties of
						the job involved and where the action was promptly discontinued upon
						notification of rescission or revocation of the original interpretation of the
						staff.
(d) The issuance of a
						supplementary interpretation to an employer, employment agency or labor union
						would prevent action by the Commission against a requesting party, unless
						notice of rescission or revocation as provided in subsection (c) has been
						provided. If the issuance of a supplementary interpretation would not preclude
						the filing of a complaint by an employe or job applicant against an employer,
						employment agency or labor union to which a supplementary interpretation has
						been given. Thus, the issuance of a supplementary interpretation will not be
						asserted as any part of a defense to a charge of discrimination brought by an
						individual complainant, although the substantive defense of a bona fide
						occupational qualification for the position in question may be raised. Where
						the substantive defense is raised, the Commission will dispose of the case on
						the relative facts and merits thereof without regard to a prior issuance of an
						interpretation to the respondent.
This section cited in 16 Pa. Code §
														51.52 (relating to securing
							 supplementary interpretations); and 22 Pa. Code § 32.3 (relating to
							 assurances).