PRINTER'S NO. 3272
No. 2494 Session of 1996
INTRODUCED BY LEH, CLYMER, FARGO, NICKOL, SAYLOR, ALLEN, ARGALL,
SEMMEL, WOGAN, MILLER, E. Z. TAYLOR, SERAFINI, FAIRCHILD,
HESS, REBER, FEESE, SCHRODER, HERSHEY AND ROHRER,
MARCH 18, 1996
REFERRED TO COMMITTEE ON STATE GOVERNMENT, MARCH 18, 1996
AN ACT
1 Amending the act of October 27, 1955 (P.L.744, No.222),
2 entitled, as amended, "An act prohibiting certain practices
3 of discrimination because of race, color, religious creed,
4 ancestry, age or national origin by employers, employment
5 agencies, labor organizations and others as herein defined;
6 creating the Pennsylvania Human Relations Commission in the
7 Governor's Office; defining its functions, powers and duties;
8 providing for procedure and enforcement; providing for
9 formulation of an educational program to prevent prejudice;
10 providing for judicial review and enforcement and imposing
11 penalties," defining "advertisement" and "advertiser"; and
12 providing for certain forms of advertisement and for
13 limitations.
14 The General Assembly of the Commonwealth of Pennsylvania
15 hereby enacts as follows:
16 Section 1. Section 4(w) of the act of October 27, 1955
17 (P.L.744, No.222), known as the Pennsylvania Human Relations
18 Act, amended December 20, 1991 (P.L.414, No.51), is amended and
19 the section is amended by adding clauses to read:
20 Section 4. Definitions.--As used in this act unless a
21 different meaning clearly appears from the context:
22 * * *
1 (w) (1) The term "housing for older persons" means housing:
2 (i) provided under any Federal or State program that the
3 Pennsylvania Human Relations Commission determines is
4 specifically designed and operated to assist elderly persons as
5 defined in the Federal or State program;
6 (ii) is intended for and solely occupied by persons sixty-
7 two years of age or older; or
8 (iii) is intended and operated for occupancy by [at least
9 one person fifty-five years of age or older per unit.] persons
10 fifty-five years of age or older and:
11 (A) at least eighty percent of the occupied units are
12 occupied by at least one person who is fifty-five years of age
13 or older;
14 (B) the housing facility or community publishes and adheres
15 to policies and procedures that demonstrate the intent required
16 under this subparagraph; and
17 (C) the housing facility or community complies with rules
18 issued by the Commission for verification of occupancy, which
19 shall:
20 (I) provide for verification by reliable surveys and
21 affidavits; and
22 (II) include examples of the types of policies and
23 procedures relevant to a determination of compliance with the
24 requirement of clause (b). Such surveys and affidavits shall be
25 admissible in administrative and judicial proceedings for the
26 purposes of such verification.
27 (2) [In determining whether housing qualifies as housing for
28 older persons under this clause, the Pennsylvania Human
29 Relations Commission's requirements shall include, but not be
30 limited to, the following:
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1 (i) the existence of significant facilities and services
2 specifically designed to meet the physical or social needs of
3 older persons, or if the provision of such facilities and
4 services is not practicable, that such housing is necessary to
5 provide important housing opportunities for older persons;
6 (ii) that at least eighty percent of the units are occupied
7 by at least one person fifty-five years of age or older per
8 unit; and
9 (iii) the publication of, and adherence to, policies and
10 procedures which demonstrate an intent by the owner or manager
11 to provide housing for persons fifty-five years of age or
12 older.] A person shall not be held personally liable for
13 monetary damages for a violation of this act if such person
14 reasonably relied, in good faith, on the application of the
15 exemption under this subsection relating to housing for older
16 persons. For the purposes of this paragraph, a person may only
17 show good faith reliance on the application of the exemption by
18 showing that:
19 (i) such person has no actual knowledge that the facility or
20 community is not, or will not be, eligible for such exemption;
21 and
22 (ii) the facility or community has stated formally, in
23 writing, that the facility or community complies with the
24 requirements of such exemption.
25 * * *
26 (z) The term "advertisement" or "advertising" means any
27 advertisement and any similar written, printed, taped or
28 broadcast communication, notice, statement or the like which is
29 disseminated (whether published, printed, circulated, issued,
30 displayed, posted or mailed) for the purpose of promoting
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1 housing activity, including, but not limited to, rentals, leases
2 and sales. For the purpose of determining whether section 9(a)
3 prohibits additional complaints from being filed concerning the
4 same advertisement, the term "advertisement" shall include all
5 further dissemination of the same or a substantially similar
6 advertisement or communication in other editions, publications,
7 media and the like for a period of one year following the
8 initial dissemination of the advertisement.
9 (aa) The term "advertiser" means any person who places,
10 publishes, broadcasts or similarly causes to be disseminated by
11 any other means an advertisement or advertising as defined in
12 clause (z).
13 Section 2. Section 5(h)(10) of the act, amended December 20,
14 1991 (P.L.414, No.51), is amended and the subsection is amended
15 by adding a paragraph to read:
16 Section 5. Unlawful Discriminatory Practices.--It shall be
17 an unlawful discriminatory practice, unless based upon a bona
18 fide occupational qualification, or in the case of a fraternal
19 corporation or association, unless based upon membership in such
20 association or corporation, or except where based upon
21 applicable security regulations established by the United States
22 or the Commonwealth of Pennsylvania:
23 * * *
24 (h) For any person to:
25 * * *
26 (10) Nothing in this clause shall bar any religious or
27 denominational institution or organization or any charitable or
28 educational organization which is operated, supervised or
29 controlled by or in connection with a religious organization or
30 any bona fide private or fraternal organization from giving
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1 preference to persons of the same religion or denomination or to
2 members of such private or fraternal organization or from making
3 such selection as is calculated by such organization to promote
4 the religious principles or the aims, purposes or fraternal
5 principles for which it is established or maintained. Nor shall
6 it apply to the rental of rooms in a landlord-occupied rooming
7 house with a common entrance, nor with respect to discrimination
8 based on sex, the advertising, rental or leasing of housing
9 accommodations in a single-sex dormitory or rooms in one's
10 personal residence in which common living areas would be shared.
11 (11) Nothing in this act limits the applicability of a
12 reasonable State or local restriction on the maximum number of
13 occupants permitted to occupy a dwelling or a restriction
14 relating to health or safety standards or business necessity.
15 * * *
16 Section 3. Section 9(a), (d.1), (f) and (f.1) of the act,
17 amended December 20, 1991 (P.L.414, No.51), are amended and the
18 section is amended by adding subsections to read:
19 Section 9. Procedure.--(a) (1) Any person claiming to be
20 aggrieved by an alleged unlawful discriminatory practice may
21 make, sign and file with the Commission a verified complaint, in
22 writing, which shall state the name and address of the person,
23 employer, labor organization or employment agency alleged to
24 have committed the unlawful discriminatory practice complained
25 of, and which shall set forth the particulars thereof and
26 contain such other information as may be required by the
27 Commission. Commission representatives shall not modify the
28 substance of the complaint. Whenever a person invokes the
29 procedures set forth in this act, the Commission shall refuse to
30 accept for filing a complaint it determines to be untimely with
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1 no grounds for equitable tolling, outside its jurisdiction or
2 frivolous on its face. The Commission upon its own initiative or
3 the Attorney General may, in like manner, make, sign and file
4 such complaint. Any employer whose employes, or some of them,
5 hinder or threaten to hinder compliance with the provisions of
6 this act may file with the Commission a verified complaint,
7 asking for assistance by conciliation or other remedial action
8 and, during such period of conciliation or other remedial
9 action, no hearings, orders or other actions shall be taken by
10 the Commission against such employer.
11 (2) Any natural person claiming to have suffered actual
12 damages or an actual injury because of an alleged unlawful
13 discriminatory practice in a housing advertisement may make,
14 sign and file with the Commission a verified complaint, in
15 writing, which shall state the name and address of the person
16 alleged to have committed the unlawful discriminatory practice
17 complained of, and which shall set forth the particulars thereof
18 and contain such other information as may be required by the
19 Commission. Once an action has been filed by a natural person
20 alleging a violation of this act, no additional action may be
21 filed by other natural persons under this act against the same
22 respondent or respondents, concerning the same conduct,
23 statement or statements and/or advertisement or advertisements
24 that form the basis of the first-filed action, except that other
25 natural persons who have suffered actual damages or an actual
26 injury because of an alleged violation of this act may be
27 permitted by the Commission to join the first-filed action as
28 additional complainants. Other than permitting such joinder of
29 additional complainants, Commission representatives shall not
30 modify the substance of the complaint. Whenever a person invokes
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1 the procedures set forth in this act, the Commission shall
2 refuse to accept for filing a complaint it determines to be
3 untimely with no grounds for equitable tolling, outside its
4 jurisdiction or frivolous on its face. The Commission upon its
5 own initiative or the Attorney General may, in like manner, sign
6 and file such complaint, and may additionally make, sign and
7 file a complaint seeking injunctive relief or other relief
8 specified in subsection (f)(1), whether or not any natural
9 person is alleged to have suffered actual damages or an actual
10 injury because of an alleged unlawful discriminatory practice.
11 * * *
12 (c.1) The Commission shall dismiss a case with prejudice,
13 before or after a finding of probable cause, where, in its
14 opinion, appropriate remedy has been offered by the respondent
15 and refused by the complainant.
16 * * *
17 (d.1) When notice of hearing is given as set forth in
18 subsection (d) and an election procedure is required by the Fair
19 Housing Act, either party may elect to have the claim asserted
20 in the complaint decided in a civil action brought under the
21 original jurisdiction of Commonwealth Court. The written notice
22 of the Commission shall be sent to all parties and will inform
23 them of their right to take civil action. An election must be
24 made within twenty days after receipt of the notice of hearing.
25 A party making this election shall notify the Commission and all
26 other parties. If an election for civil action is made by either
27 party, the Commission shall, within thirty days from the date of
28 election, commence and maintain a civil action on behalf of the
29 complainant provided, however, that, whenever the Attorney
30 General signs and files the complaint pursuant to subsection
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1 (a), the Attorney General shall, within thirty days from the
2 date of election, commence and maintain a civil action on behalf
3 of the complainant. In those cases commenced by the Attorney
4 General, the Commission shall have the right to intervene. In
5 any action brought under this subsection:
6 (1) All filing fees shall be waived for the Commission and
7 all parties, including the action brought under Commonwealth
8 Court's original jurisdiction and any appeal arising out of such
9 action.
10 (2) If, after a trial, Commonwealth Court finds that a
11 respondent engaged in or is engaging in any unlawful
12 discriminatory practice as defined in this act, the court may
13 award attorney fees and costs to the complainant on whose behalf
14 the action was commenced.
15 (3) If, after a trial, Commonwealth Court finds that a
16 respondent has not engaged in or is not engaging in any unlawful
17 discriminatory practice as defined in this act, the court may
18 award attorney fees and costs to the prevailing respondent if
19 the respondent proves that the complaint upon which the civil
20 action was based was brought in bad faith.
21 (4) If, after a trial, the Commonwealth Court finds that a
22 respondent has not engaged in any unlawful discriminatory
23 practice as defined in this act, the court may award attorney
24 fees and costs to the prevailing respondent if the court
25 determines that the complaint is frivolous and that the
26 Commission dealt with the party complained against in a wilful,
27 wanton and oppressive manner, in which case, the Commission
28 shall be ordered to pay such costs and attorney fees.
29 * * *
30 (f) (1) If, upon all the evidence at the hearing, the
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1 Commission shall find that a respondent has engaged in or is
2 engaging in any unlawful discriminatory practice as defined in
3 this act, the Commission shall state its findings of fact, and
4 shall issue and cause to be served on such respondent an order
5 requiring such respondent to cease and desist from such unlawful
6 discriminatory practice and to take such affirmative action,
7 including, but not limited to, reimbursement of certifiable
8 travel expenses in matters involving the complaint, compensation
9 for loss of work in matters involving the complaint, hiring,
10 reinstatement or upgrading of employes, with or without back
11 pay, admission or restoration to membership in any respondent
12 labor organization, the making of reasonable accommodations, or
13 selling or leasing specified housing accommodations or
14 commercial property upon such equal terms and conditions and
15 with such equal facilities, services and privileges or lending
16 money, whether or not secured by mortgage or otherwise for the
17 acquisition, construction, rehabilitation, repair or maintenance
18 of housing accommodations or commercial property, upon such
19 equal terms and conditions to any person discriminated against
20 or all persons, and any other verifiable, reasonable out-of-
21 pocket expenses caused by such unlawful discriminatory practice,
22 provided that, in those cases alleging a violation of section
23 5(d), (e) or (h) excluding clause (5), or 5.3 where the
24 underlying complaint is a violation of section 5(h) excluding
25 clause (5), or 5.3, the Commission may award actual damages,
26 including damages caused by humiliation and embarrassment, as,
27 in the judgment of the Commission, will effectuate the purposes
28 of this act, and including a requirement for report of the
29 manner of compliance.
30 (2) [Such] Except where subsection (a) renders this
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1 paragraph inapplicable, such order may also assess a civil
2 penalty against the respondent in a complaint of discrimination
3 filed under sections 5(h) or 5.3:
4 (i) in an amount not exceeding ten thousand dollars
5 ($10,000) if the respondent has not been adjudged to have
6 committed any prior discriminatory practice;
7 (ii) in an amount not exceeding twenty-five thousand dollars
8 ($25,000) if the respondent has been adjudged to have committed
9 one other discriminatory practice during the five-year period
10 ending on the date of this order; or
11 (iii) in an amount not exceeding fifty thousand dollars
12 ($50,000) if the respondent has been adjudged to have committed
13 more than one other discriminatory practice during the seven-
14 year period ending on the date of this order.
15 If, however, subsection (a) does not render this paragraph
16 inapplicable and the acts constituting the discriminatory
17 practice that is the object of the charge are committed by the
18 same natural person who has been previously adjudged to have
19 committed acts constituting a discriminatory practice, then the
20 civil penalties set forth in subparagraphs (ii) and (iii) may be
21 imposed without regard to the period of time within which any
22 subsequent discriminatory practice occurred.
23 (3) When the respondent is a licensee of the Commonwealth,
24 the Commission shall inform the appropriate State licensing
25 authority of the order with the request that the licensing
26 authority take such action as it deems appropriate against such
27 licensee. An appeal from the Commission's order shall act as a
28 supersedeas and stay such action by the State licensing
29 authority until a final decision on said appeal.
30 (4) If, upon all the evidence, the Commission shall find
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1 that a respondent has not engaged in any such unlawful
2 discriminatory practice, the Commission shall state its findings
3 of fact, and shall issue and cause to be served on the
4 complainant an order dismissing the said complaint as to such
5 respondent.
6 (f.1) If, upon all the evidence at the hearing, in those
7 cases alleging a violation of section 5(d), (e), (h) or 5.3
8 where the underlying complaint is a violation of section 5(h) or
9 5.3, and subsection (a) does not render this subsection
10 inapplicable and the Commission finds that a respondent has
11 engaged in or is engaging in any unlawful discriminatory
12 practice as defined in this act, the Commission may award
13 attorney fees and costs to prevailing complainants.
14 * * *
15 (j) At any time after the filing of a complaint, the
16 Commission shall dismiss with prejudice a complaint which, in
17 its opinion is untimely with no grounds for equitable tolling,
18 outside its jurisdiction or frivolous on its face.
19 Section 4. The act is amended by adding sections to read:
20 Section 9.1. Procedure Regarding Housing Advertisements.--
21 (a) Where the alleged violation of this act complained of
22 involves an advertisement, the following procedure specified in
23 this section shall apply.
24 (b) The Commission shall compile, publish and update as
25 required a list of words, phrases, symbols and the like which
26 are impermissible under this act when used in housing
27 advertisements and shall publish in the Pennsylvania Bulletin
28 both this list and specific examples of housing advertisements
29 which are impermissible under this act. This list shall be
30 published within sixty days of the effective date of this act
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1 and shall serve thereafter as proposed rulemaking in full force
2 and effect until such time as the final-form regulations are
3 adopted.
4 (c) Where a complaint is filed with the Commission alleging
5 unlawful advertising in violation of section 9(h)(5), the
6 following shall take place after service of the complaint:
7 (1) the respondent shall cease disseminating the
8 advertisement and/or correct the advertisement to address the
9 concerns specified in the complaint and notify in writing both
10 the Commission and the complainant of the action taken; or
11 (2) the respondent shall file a written, verified answer in
12 compliance with the provisions of section 9(b)(3).
13 (d) If the respondent either ceases disseminating or
14 corrects the advertisement complained of within fifteen days
15 following service as specified in subsection (c), the advertiser
16 shall not be liable for penalties under this act, and the
17 complaint shall be dismissed by the commission, if the
18 respondent notifies the Commission of its action on or before
19 the date that the answer to the complaint is due.
20 (e) An advertiser who knowingly and wilfully violates this
21 act may be penalized under section 9(f)(2) and (f.1). It shall
22 be an affirmative defense precluding a finding that an
23 advertiser has knowingly and wilfully violated this act if an
24 advertiser has either:
25 (1) attempted, in good faith, to comply with the list and
26 specific examples of impermissible housing advertisements
27 described in subsection (b);
28 (2) complied with an interpretation of the Commission or its
29 personnel concerning what constitutes appropriate housing
30 advertisements; or
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1 (3) ceased disseminating or corrected an advertisement as
2 described in subsection (d).
3 It shall also be an affirmative defense precluding a finding
4 that an advertiser has knowingly and wilfully violated this act
5 if an advertiser has made reasonable efforts in good faith to
6 comply with this act. Guidelines as to the type of conduct which
7 constitutes such reasonable efforts to comply shall be developed
8 and published by the Commission in the Pennsylvania Bulletin
9 along with the list and specific examples of impermissible
10 advertising described in subsection (b).
11 (f) (1) In order to facilitate the speedy implementation of
12 this program, the Commission shall have the power and authority
13 to promulgate, adopt and use guidelines which shall be published
14 in the Pennsylvania Bulletin. The guidelines shall not be
15 subject to review pursuant to section 205 of the act of July 31,
16 1968 (P.L.769, No.240), referred to as the Commonwealth
17 Documents Law, sections 204(b) and 301(10) of the act of October
18 15, 1980 (P.L.950, No.164), known as the "Commonwealth Attorneys
19 Act," or the act of June 25, 1982 (P.L.633, No.181), known as
20 the "Regulatory Review Act," and shall be effective for a period
21 not to exceed one year from the effective date of this act.
22 (2) After the expiration of the one-year period, all
23 guidelines shall expire and shall be replaced by regulations
24 which shall have been promulgated, adopted and published as
25 provided by law.
26 Section 9.3. Civil Penalties.--The Commission shall have the
27 power to adopt a schedule of civil penalties for violation of
28 section 5(h)(5) by the advertiser and the publisher in instances
29 where the complainant does not take action to secure housing
30 accommodations or financing and is not denied housing
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1 accommodations or financing based on the alleged discriminatory
2 language in the advertisement. The schedule of penalties,
3 guidelines for their imposition and procedures for appeal shall
4 be published in the Pennsylvania Bulletin, provided that the
5 Commission shall, within two (2) years of such publication,
6 promulgate a regulation setting forth the schedule of penalties,
7 guidelines and procedures. Any such penalty shall not exceed the
8 sum of five hundred dollars ($500.00). Duly authorized agents of
9 the Commission shall have the power and authority to issue
10 citations and impose penalties for any such violations. Any such
11 penalty imposed may be appealed to the Commission pursuant to
12 regulations promulgated under this act. All proceedings shall be
13 conducted in accordance with the provisions of 2 Pa.C.S.
14 (relating to administrative law and procedure).
15 Section 5. Section 13 of the act is amended to read:
16 Section 13. Separability.--If any clause, sentence,
17 paragraph or part of this act, or the application thereof, to
18 any person or circumstance, shall, for any reason, be adjudged
19 by a court of competent jurisdiction to be invalid, such
20 judgment shall not affect, impair or invalidate the remainder of
21 this act nor the application of such clause, sentence, paragraph
22 or part to other persons or circumstances, but shall be confined
23 in its operation to the clause, sentence, paragraph or part
24 thereof and to the persons or circumstances directly involved in
25 the controversy in which such judgment shall have been rendered.
26 It is hereby declared to be the legislative intent that this act
27 would have been adopted had such provisions not been included or
28 such persons or circumstances been expressly excluded from their
29 coverage. If any clause, sentence, paragraph or part of this
30 act, or the application thereof, to any person or circumstance,
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1 shall be adjudged by a court of competent jurisdiction not to be
2 in substantial equivalence with the Fair Housing Act (Public Law
3 90-284, 42 U.S.C. § 3601 et seq.), such judgment shall not
4 affect, impair or invalidate the substantial equivalence of the
5 remainder of this act, but shall be confined to the clause,
6 sentence, paragraph or part directly involved in the controversy
7 in which such judgment has been rendered.
8 Section 6. The provisions of 16 Pa. Code §§ 45.8(a)
9 (relating to advertisements) and 45.13(f) (relating to
10 exemptions) are nullified.
11 Section 7. This act shall take effect in 60 days.
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