16 Pa. Code § 41.73 - Supplementary interpretations regarding bona fide occupational qualification standards

(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.

Notes

16 Pa. Code § 41.73

The provisions of this § 41.73 adopted July 12, 1974, effective 7/13/1974, 4 Pa.B. 1406.

This section cited in 16 Pa. Code § 51.52 (relating to securing supplementary interpretations); and 22 Pa. Code § 32.3 (relating to assurances).