Epic Failures of the PHRC to Investigate Discrimination, as Complaints Are Sustained only 2% of the Time, Down from 9% in 2020 and 42% in 1957; However, Fixes Are Almost Too Obvious

Desperate residents of the Commonwealth cry out to the PHRC on a daily basis -- after waiting 1-2 years only to receive a notice that that the PHRC had determined that they were not discriminated against -- in a familiar refrain:

"I am appealing my no-probable cause determination because you never investigated my case, ignored facts helpful to me and just took the company's word for everything."

I am writing to explain, based on my internal PHRC observations, why these people are frequently correct and how the Commonwealth can reform the PHRC to resolve these unacceptable occurrences TODAY.

Brief History

After 20 years of bipartisan heartache and repeated dashed hopes among labor, African-American, Jewish, Catholic and other advocates, the allies of equal protection in employment finally triumphed in the PA General Assembly in 1955, just one year after Brown v. Bd. of Ed., passing an employment anti-discrimination law that was extended to housing and education in 1961, ultimately forming today's Pennsylvania Human Relations Act ("PHRA") and the Pennsylvania Human Relations Commission (PHRC) to administer it.

 
The Ugly Truth

By the end of its first full year of operations, March 1, 1957, the (forerunner to the) PHRC completed 144 investigations of discrimination complaints and found probable cause for discrimination (PC) in 42% of the investigations; just 34% of the cases were given no-PC determinations (findings that no discrimination had occurred). In its second year of operation, ending March 1, 1958, the PHRC investigated 196 cases and found PC for the occurrence of discrimination in about half of them. Yet, in 2022, the PHRC found PC in only 9% of the cases closed. Tragically, in both fiscal 2023 and 2024, the PHRC found PC in only 2% of the investigations it completed, with absolutely no findings of discrimination in one of its 3 regions, Pittsburgh, in 2024.  

Why This Represents Injustice

Have PA businesses simply stopped discriminating on the basis of race, sex, religion, etc. (so-called protected classes)? Are those tormented souls who are filing complaints simply imagining that adverse actions they bravely confront are related to their protected classes?

OF COURSE NOT, based on both common sense and what I observed during my year of employment with the PHRC.

The abysmal PC rates, that clearly do not match the lived experiences of most people of color, lie exclusively at the feet of a bureaucratic, formalistic organization where Commissioners, Regional Directors, supervisors, the management of the Office of Chief Counsel (OCC), some attorneys in the OCC and many of the senior executives have adopted and/or accepted policies and practices that guarantee that few complainants will ever receive justice before the PHRC. The investigators simply cannot do their jobs under these circumstances.

What I Witnessed as a PHRC Attorney

My job as an Attorney II was to review preliminary hearing petitions sent by those who had filed discrimination complaints. These petitions are, effectively, appeals of the no-PC determinations that had been made by investigators, Regional Directors and others within the PHRC -- decisions which tell the complainants that there is insufficient evidence to find that they had suffered any form of discrimination made illegal by the PHRA or other relevant statutes enforced by the PHRC.

 The criteria used by my team of lawyers in the OCC to overturn a no-PC determination, was fully and firmly established: we were to recommend approving appeals only when at least one of three conditions existed which would have changed the determination: the investigator(s) had made an error of law, the investigator(s) had made an error of fact or there was new evidence not considered by the investigator(s).

In more than 90% of the appeals I was randomly assigned, I found that the investigations were so poorly completed (or that the complainant provided new, material evidence) that the no-PC determinations had to be vacated and the matter re-investigated. The errors I consistently found included:

• Investigators, their supervisors and Regional Directors improperly formed comparators (the primary tool for measuring whether two similarly situated persons were treated similarly).  This is a highly technical, lynchpin device that skilled lawyers sometimes struggle to formulate and apply, but none of the aforementioned staff are lawyers and their training is simply inadequate to meet the criticality of this task.
  
  
• Investigators, their supervisors, Regional Directors and many lawyers within the OCC fail to apply, properly or even partially, the McDonnell Douglas framework that is the primary tool for inferring discriminatory intent when direct evidence (like a supervisor using the N-word or making sexist comments) does not exist.  The apparent fear, hesitancy and/or ignorance of this tool, fully authorized by the US Supreme Court, artificially and impermissibly raises the bar to a finding of PC to a level that is beyond what the US Constitution requires.
  
  
• Investigators, their supervisors and Regional Directors send incomplete, irrelevant, erroneous Requests for Information (RFIs) to the parties, then improperly conclude from even faithful and honest answers that there is insufficient evidence to support the complaints.  I typically rewrote RFIs and recommended that the investigators send new ones to the parties so that they could gather the necessary information to decide a claim.
  
  
• Investigators, their supervisors and Regional Directors -- again, not trained as attorneys -- are required to exchange correspondence with attorneys for the companies being accused of discrimination. Unfortunately, these people are ill-equipped to recognize, decipher and defeat even the most common and rudimentary tactics used by attorneys to obfuscate the wrong-doing of their clients. There is no training in the PHRC manuals for how attorneys are taught to hide necessary facts in plain sight during a discovery process. PHRC staff are like mounds of clay in the hands of corporate attorneys when reviewing answers, position statements or replies to (improperly created) RFIs from those attorneys. OCC lawyers are forbidden to assist them with any of these tasks, other than writing a few rarely sought legal memos, so that the investigation can remain "independent" -- whatever that is supposed to mean. It was never a surprise, therefore, and not a true indication of investigator bias or laziness, when a final investigation memo looked like it was written by the company under scrutiny! 
  
  
• PHRC staff do receive significant legal training, but I was told that they could not understand the law I cited in my appeal reports -- the very law they were required to apply in deciding the complaints.  Training must improve dramatically; there is an unstated reason for any investigator claiming not to understand the legal analysis of there very own cases written by any OCC lawyer; or, the investigator role must change to require a law or, perhaps, paralegal degree.

What about My Work Yielded Different Results Than Other Attorneys/the Commission Itself

My 90+% rejection rate was an order of magnitude greater than the rate of my peer attorneys, not because I was brighter than other attorneys or used a different legal standard, but, in the words of one of my supervisors, other attorneys were spending only 20% of the time I did on any given appeal. In one of my last cases, in which the Complainant accused the Executive Director of bias in a massive, 1000-page case file, I worked two consecutive 80-hour weeks and thoroughly catalogued the key errors of law and fact to arrive at my independent conclusion that the investigator had produced an unsupportable no-PC determination, without so much as a hint of intervention from the E.D. My supervisor spent less than one day on the same case to create a rival analysis memo and, not surprisingly, failed to see literally all but one of my key findings. 

The time attorneys spend on their review of appeals does matter, but there was never any suggestion by OCC management that the other attorneys needed to analyze their appeals more thoroughly. However, I was ordered to stay within the 37.5 hour Commonwealth work week, not to work my normal 60-hour week (which included 22.5 volunteer hours) and to keep my appeal reports/memos to 4-5 pages, even though I was required to review investigations that frequently lasted 1-2 years and sometimes contained as many as eight different claims of discrimination.

At some point, quite ironically and pretextually, a Regional Director made it her business to complain to my management -- not about my conclusions or my rejection rate -- but about the very high quality of my work. She told my management that my memos were more appropriate for lawyers, not investigators, because they cited case law, contained too many facts and too much law, so were simply too long. My management then ordered me to write my memos for an audience of eight-graders. This was a bizarre request because the investigators who were to receive my memos were fully responsible for understanding the relevant law and had actually developed every fact which I cited! When I attempted to comply, shortening the analysis and page length of my final two memos by about 50%, my management then asserted to me that my analysis was incomplete. The "tell" that this drama was pretextual and that my time at the PHRC had come to an end, was when my management admitted that they hadn't actually read those two memos.

My ethics and professionalism had been so compromised that I had no choice but to resign. But, before doing so, I provided the detailed examples summarized above of why I had overturned so many cases. The investigators were repeating the same mistakes and their supervisors and Regional Directors appeared oblivious to them. I met with numerous executives within the PHRC, cataloging the same errors that the investigators had been repeatedly making and describing a remedy that incudes two breath-takingly simple steps that could be implemented immediately: 

1. Require attorneys from the OCC to coordinate with investigators at practical touch points, such as when legal analysis was required, when RFIs had to be sent to the parties, when communications with attorneys of the parties was required and when writing both investigative plans and final determinations.  Alternatively, require that Regional Directors and/or supervisors be licensed attorneys.
   
   
2. Require attorneys from the OCC to spend longer (at least 20 hours?) reviewing each appeal, even longer when complaints have numerous claims or voluminous fact patterns. Note that once lawyers are chaperoning each investigation, the time they devote to reviewing appeals (always of cases which they did not direct) could be reduced quite dramatically and the number of erroneous no-PC determinations (the origins of appeals) would similarly fall precipitously. It is, therefore, unclear how much additional burden this strategy would place on OCC lawyers.
   
   
3. Convince the Governor and General Assembly that the PHRC would continue to fail to protect residents from discrimination, at an acceptable and proper scale, unless there was more funding approved for additional staff and/or overtime for all roles.

I recognized that the PHRC's mistakes were generally in understanding and applying fine details of the relevant law in day-to-day investigative tasks -- something only lawyers could be expected to carry out faithfully -- if they were given sufficient time. So, no amount of training would turn hard-working, compassionate investigators and their management into highly skilled attorneys. We literally needed to have attorneys shadow each and every investigation to set and correct course, as necessary, then ensure that all determinations are legally sound. 

My observations and recommendations were greeted with civility, at first, then with scorn and contempt. The same people who would have to implement these simple changes would be admitting their own errors in setting up and/or administering the current system. Their unchecked positions of authority within the PHRC gave them comfort and power. Why alter any of that when it was just easier to turn up the heat on Mr. Alston until he just stopped being a troublemaker?

And, so, the PHRC continues to receive appeals from desperate residents of the Commonwealth who plea from the same, traumatic hymnal about being ignored by the PHRC.

The PHRC can and must do better. It exists as the ultimate manifestation of a long line of careful and hopeful work of Pennsylvanians to build a society where equal protection is a persistent, unqualified and immovable reality.

About the Author: Alson Clayton Alston in an attorney in private practice, specializing in discrimination, contract, employment, defamation and personal injury law.  He wrote an OpEd for the Inquirer in 2023, describing his struggles opening a law firm in his North Philadelphia neighborhood. In answering the central question he posed in his opinion piece, he chose to delay the full operations of his law firm until the city provided a safer environment for his office and clients.  He began working for the Commonwealth. However, after realizing that employment within state government was as dangerous to his mental health and well-being as criminal elements in Brewerytown were to his physical health and livelihood, he returned to private practice, in earnest, in March of 2025.  He now provides free consultations to walk-in community members, three days a week, at 29th & Girard.  He also provides several pro bono initial consultations to patrons of the Philadelphia Bar Association Lawyer Referral Service.  He generally volunteers 2 hours for consultations that are contracted to be only 30 minutes.  You may contact him at: https://www.AlAlstonLaw.com, ACAlstonLaw@BecomeMyLawyer.com and 610-803-7124.