The Institute for Justice has filed a lawsuit on behalf of two women who were denied a license by the Pennsylvania Board of Cosmetology based on their criminal record, because they could not establish the necessary “good moral character.”  The IJ lawsuit illustrates the continuing difficulties faced by people with a past conviction in the workplace even when they are qualified and fully rehabilitated.  At the same time, in recent years Pennsylvania courts have not looked kindly on conviction-based employment bars, and last summer a board appointed by Governor Tom Wolf to review occupational licensing in the state issued a report critical of the good-character requirement in many licensing laws.  So perhaps the tide is turning.   

A piece in Forbes by IJ’s Andrew Wimer describes the case of Amanda Spillane, one of the two plaintiffs in the lawsuit:  As a teenager, Amanda started using drugs to self-medicate for mental health issues. Eventually, she turned to burglary to support her habit. She was caught, convicted and spent two years in a state correctional facility.  In prison, she overcame her addiction to drugs and found a new faith. After release, with help from family, she remained clean and worked a fast food job, before deciding to improve her prospects by taking a course to become an esthetician (a cosmetologist who focuses on the face), which required 300 hours of instruction and cost about $6,000.  In applying for a license, Amanda did not expect her past to be an issue; she knew cosmetology was a skill taught to women in prison.  But the Board of Cosmetology informed her that she lacked the requisite “good moral character” for licensure because of her criminal record. When she appealed, a board official “questioned whether her faith was real, demanded proof that Amanda gave regularly to charity, and asked why the people who had provided letters of recommendation had not traveled the two hours to the hearing to testify in person.”  Her appeal was denied.

On December 12, 2018, IJ filed suit on behalf of Amanda and Courtney Haveman—another Pennsylvania woman similarly rejected for a license—challenging the Pennsylvania law that requires applicants for esthetician, nail technician, and natural-hair barber licenses to “be of good moral character.”  Click here to read the complaint.  

The challenge is brought on substantive due process and equal protection grounds under the Pennsylvania Constitution.  The plaintiffs argue that the Board denied their licenses, and routinely denies other licenses, based on convictions that have nothing to do with fitness to practice cosmetology.  They argue that the good-character requirement violates substantive due process because it does not protect the public, but is rooted in illegitimate government interests: elitism and economic protectionism, in violation of the individual right to pursue a chosen occupation free from arbitrary and irrational legislation.  Their equal protection claim is based on the argument that Pennsylvania law does require barbers or unlicensed spa and salon workers to have good character, in contrast to estheticians, which irrationally subjects similarly-situated groups to different legal rules.

A line of Pennsylvania court decisions involving a lifetime ban of people with certain criminal convictions from working in long-term health care facilities may be relevant as precedent.  In Nixon v. Commonwealth, the Commonwealth Court and then the Supreme Court of Pennsylvania found provisions in the Older Adults Protective Services Act imposing lifetime bans on health care workers to be unconstitutional as applied to the individual plaintiffs.  789 A.2d 376 (Pa. Commw. 2001), affirmed 839 A.2d 277 (Pa. 2003).  The Commonwealth Court relied on substantive due process, noting that remote convictions are irrelevant to predicting future behavior, and concluded that there was no rational relationship between the lifetime ban and a legitimate governmental purpose.  The Supreme Court relied on equal protection, finding no legitimate basis for the statute to prohibit anyone with a disqualifying conviction from ever working in a covered facility, but at the same time to exempt from the ban anyone who was working in a covered facility for more than a year before the law went into effect.  

Despite these rulings, the statute was not amended, and continued to be applied for several years.  In 2015, Tyrone Peake, a man whose 1981 conviction for attempted theft barred him from work as a caregiver in a nursing home, challenged this law again, along with other plaintiffs.  The Commonwealth Court declared the law facially unconstitutional for being overbroad in violation of substantive due process, because it: (1) grandfathered in individuals employed in a facility for at least a year; and (2) established an impermissible irrebuttable presumption of unfitness for employment.  See Peake v. Commonwealth of Pennsylvania, et al., 216 M.D. 2015.  Pennsylvania decided not to appeal that decision.  These health care employment ban cases may prove relevant, but they involved absolute bans on employment, whereas this lawsuit involves a claim that a licensing board possesses arbitrary discretion to exclude based on a criminal record, perhaps a different type of question altogether.

The good-character requirement is also facing scrutiny in the executive branch.  In 2017, PA Governor Tom Wolf ordered a review of occupational licensing, which was issued this June.  As the Associated Press reported, the review states that the good-character requirement is “loosely defined” and “there is the potential for it to be applied unevenly across boards.”  It recommends that the governor and the administration “examine the impact of criminal history bans and ‘good moral character’ requirements on ensuring Pennsylvania residents are able to engage in the workforce without unnecessary barriers.”  In response to the AP story on this lawsuit, Governor Wolf’s spokesman said he couldn’t comment on the lawsuit, but “the governor believes Pennsylvania must be a place where people can put their skills, experience and education to work.”