PRINTER'S NO. 1044
No. 930 Session of 1997
INTRODUCED BY VEON, THOMAS, JOSEPHS, DeLUCA, CAWLEY, ROBINSON,
TRELLO, BUXTON, BEBKO-JONES, BELARDI, STURLA, MANDERINO,
WOJNAROSKI, TANGRETTI, PRESTON, RAMOS, BOSCOLA, PISTELLA,
ROONEY, CAPPABIANCA, PESCI, YOUNGBLOOD, STEELMAN, C. WILLIAMS
AND PETRARCA, MARCH 18, 1997
REFERRED TO COMMITTEE ON STATE GOVERNMENT, MARCH 18, 1997
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," providing for unlawful discriminatory practices
12 relating to harassment and sexual harassment, for certain
13 forms of advertisement and for limitations.
14 The General Assembly of the Commonwealth of Pennsylvania
15 hereby enacts as follows:
16 Section 1. Section 5(a) and (j) of the act of October 27,
17 1955 (P.L.744, No.222), known as the Pennsylvania Human
18 Relations Act, amended December 20, 1991 (P.L.414, No.51), are
19 amended to read:
20 Section 5. Unlawful Discriminatory Practices.--It shall be
21 an unlawful discriminatory practice, unless based upon a bona
22 fide occupational qualification, or in the case of a fraternal
1 corporation or association, unless based upon membership in such
2 association or corporation, or except where based upon
3 applicable security regulations established by the United States
4 or the Commonwealth of Pennsylvania:
5 (a) For any employer because of the race, color, religious
6 creed, ancestry, age, sex, national origin or non-job related
7 handicap or disability or the use of a guide or support animal
8 because of the blindness, deafness or physical handicap of any
9 individual or independent contractor, to refuse to hire or
10 employ or contract with, or to bar or to discharge from
11 employment such individual or independent contractor, or to
12 otherwise discriminate against such individual or independent
13 contractor with respect to compensation, hire, tenure, terms,
14 conditions or privileges of employment or contract[, if the
15 individual or independent contractor is the best able and most
16 competent to perform the services required]. The provision of
17 this paragraph shall not apply, to (1) operation of the terms or
18 conditions of any bona fide retirement or pension plan which
19 have the effect of a minimum service requirement, (2) operation
20 of the terms or conditions of any bona fide group or employe
21 insurance plan, (3) age limitations placed upon entry into bona
22 fide apprenticeship programs of two years or more approved by
23 the State Apprenticeship and Training Council of the Department
24 of Labor and Industry, established by the act of July 14, 1961
25 (P.L.604, No.304), known as "The Apprenticeship and Training
26 Act." Notwithstanding any provision of this clause, it shall not
27 be an unlawful employment practice for a religious corporation
28 or association to hire or employ on the basis of sex in those
29 certain instances where sex is a bona fide occupational
30 qualification because of the religious beliefs, practices, or
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1 observances of the corporation, or association.
2 * * *
3 (j) For any person subject to the act to fail to post and
4 exhibit prominently in his place of business any fair practices
5 notice prepared and distributed by the Pennsylvania Human
6 Relations Commission. The notice shall include a section that
7 specifically defines sexual harassment and lists it among the
8 prohibited and unfair practices.
9 * * *
10 Section 2. The act is amended by adding a section to read:
11 Section 5.4. Harassment.--(a) (1) All employers shall act
12 to ensure a workplace free of sexual harassment.
13 (2) All employers of fifteen or more employes shall post in
14 a prominent and accessible location in the workplace a poster
15 providing, at a minimum, the following information:
16 (i) the illegality of sexual harassment;
17 (ii) the definition of sexual harassment as defined by the
18 Commission;
19 (iii) the complaint process available through the Commission
20 and legal recourse; and
21 (iv) directions on how to contact the Commission.
22 The text of this poster may meet but may not exceed sixth grade
23 literacy standards. Upon request, the Commission shall provide
24 this poster to employers for a nominal charge. This poster may
25 be reproduced.
26 (3) All employers of fifteen or more employes shall provide
27 annually all employes with individual written notice that
28 includes, at a minimum, the same information required in clause
29 (2) and the internal complaint process which is available.
30 This notice must be initially provided within ninety days after
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1 the effective date of this section. The notice must be delivered
2 in a manner to ensure notice to all employes without exception,
3 such as including the notice with an employe's pay.
4 (4) Employers shall conduct training for supervisory and
5 managerial employes within one year of commencement of
6 employment that includes, at a minimum, the specific
7 responsibilities of supervisory and managerial employes and
8 methods that these employes must take to ensure immediate and
9 appropriate corrective action in addressing sexual harassment
10 complaints. This training shall be conducted annually
11 thereafter.
12 (b) (1) Each school board shall adopt a written sexual
13 harassment policy. This policy shall apply to pupils, teachers,
14 administrators and other school personnel, and shall include
15 disciplinary actions relating to violations of the policy and
16 all of the information required under subsection (a)(3). The
17 policy must be conspicuously posted in each school building and
18 included in each school's student handbook on school policies.
19 (2) The Department of Education shall develop and make
20 available to school boards a model sexual harassment policy.
21 (3) Each school board shall submit to the department a copy
22 of the sexual harassment policy the board has adopted.
23 Section 3. Section 9(b), (d.1), (f), (f.1), (f.2) and (h) of
24 the act, amended December 20, 1991 (P.L.414, No.51), are amended
25 and the section is amended by adding a subsection to read:
26 Section 9. Procedure.--* * *
27 (b) (1) After the filing of any complaint, or whenever
28 there is reason to believe that an unlawful discriminatory
29 practice has been committed, the Commission shall make a prompt
30 investigation in connection therewith.
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1 (2) The Commission shall send a copy of the complaint to the
2 named respondent within thirty days from the date of docketing
3 the complaint, unless otherwise required by the Fair Housing
4 Act.
5 (3) A respondent shall file with the Commission the original
6 and one copy of a written, verified answer to the complaint
7 within thirty days of service of the complaint, along with any
8 accompanying exhibits and a certificate of service that the
9 answer and accompanying exhibits have been served on the
10 complainant, unless otherwise required by the Fair Housing Act.
11 The Commission, upon request of the respondent, may grant an
12 extension of not more than thirty additional days, unless
13 otherwise required by the Fair Housing Act.
14 (4) A respondent shall send a copy of the answer, any
15 accompanying exhibits and the certificate of service to the
16 named complainant at the time of filing the answer with the
17 Commission. The Commission shall impose a fine of fifty dollars
18 ($50) upon a respondent, payable to the Commission, if the
19 respondent fails to serve a copy of the answer and accompanying
20 exhibits on the complainant at the time of filing the answer
21 with the Commission.
22 [(4)] (5) After service of the complaint, the Commission
23 shall encourage voluntary and informed predetermination
24 settlements between parties.
25 * * *
26 (d.1) When notice of hearing is given as set forth in
27 subsection (d) [and an election procedure is required by the
28 Fair Housing Act,] either party may elect to have the claim
29 asserted in the complaint decided in a civil action brought
30 under the original jurisdiction of Commonwealth Court. The
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1 written notice of the Commission shall be sent to all parties
2 and will inform them of their right to take civil action. An
3 election must be made within twenty days after receipt of the
4 notice of hearing. A party making this election shall notify the
5 Commission and all other parties. If an election for civil
6 action is made by either party, the Commission shall, within
7 thirty days from the date of election, commence and maintain a
8 civil action on behalf of the complainant provided, however,
9 that, whenever the Attorney General signs and files the
10 complaint pursuant to subsection (a), the Attorney General
11 shall, within thirty days from the date of election, commence
12 and maintain a civil action on behalf of the complainant. In
13 those cases commenced by the Attorney General, the Commission
14 shall have the right to intervene. In any action brought under
15 this subsection:
16 (1) All filing fees shall be waived for the Commission and
17 all parties, including the action brought under Commonwealth
18 Court's original jurisdiction and any appeal arising out of such
19 action.
20 (2) If, after a trial, Commonwealth Court finds that a
21 respondent engaged in or is engaging in any unlawful
22 discriminatory practice as defined in this act, the court may
23 award attorney fees and costs to the complainant on whose behalf
24 the action was commenced.
25 (3) If, after a trial, Commonwealth Court finds that a
26 respondent has not engaged in or is not engaging in any unlawful
27 discriminatory practice as defined in this act, the court may
28 award attorney fees and costs to the prevailing respondent if
29 the respondent proves that the complaint upon which the civil
30 action was based was brought in bad faith.
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1 * * *
2 (f) (1) If, upon all the evidence at the hearing, the
3 Commission shall find that a respondent has engaged in or is
4 engaging in any unlawful discriminatory practice as defined in
5 this act, the Commission shall state its findings of fact, and
6 shall issue and cause to be served on such respondent an order
7 requiring such respondent to cease and desist from such unlawful
8 discriminatory practice and to take such affirmative action,
9 including, but not limited to, reimbursement of certifiable
10 travel expenses in matters involving the complaint, compensation
11 for loss of work in matters involving the complaint, hiring,
12 reinstatement or upgrading of employes, with or without back
13 pay, admission or restoration to membership in any respondent
14 labor organization, the making of reasonable accommodations, or
15 selling or leasing specified housing accommodations or
16 commercial property upon such equal terms and conditions and
17 with such equal facilities, services and privileges or lending
18 money, whether or not secured by mortgage or otherwise for the
19 acquisition, construction, rehabilitation, repair or maintenance
20 of housing accommodations or commercial property, upon such
21 equal terms and conditions to any person discriminated against
22 or all persons, and [any other verifiable, reasonable out-of-
23 pocket expenses caused by such unlawful discriminatory practice,
24 provided that, in those cases alleging a violation of section
25 5(d), (e) or (h) or 5.3 where the underlying complaint is a
26 violation of section 5(h) or 5.3, the Commission may award]
27 payment of actual damages, including damages caused by
28 humiliation and embarrassment, as, in the judgment of the
29 Commission, will effectuate the purposes of this act, and
30 including a requirement for report of the manner of compliance.
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1 (2) Such order may also assess a civil penalty against the
2 respondent in a complaint of discrimination filed under
3 [sections 5(h) or 5.3] this act:
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, the acts constituting the discriminatory practice
16 that is the object of the charge are committed by the same
17 natural person who has been previously adjudged to have
18 committed acts constituting a discriminatory practice, then the
19 civil penalties set forth in subparagraphs (ii) and (iii) may be
20 imposed without regard to the period of time within which any
21 subsequent discriminatory practice occurred.
22 (3) When the respondent is a licensee of the Commonwealth,
23 the Commission shall inform the appropriate State licensing
24 authority of the order with the request that the licensing
25 authority take such action as it deems appropriate against such
26 licensee. An appeal from the Commission's order shall act as a
27 supersedeas and stay such action by the State licensing
28 authority until a final decision on said appeal.
29 (4) If, upon all the evidence, the Commission shall find
30 that a respondent has not engaged in any such unlawful
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1 discriminatory practice, the Commission shall state its findings
2 of fact, and shall issue and cause to be served on the
3 complainant an order dismissing the said complaint as to such
4 respondent.
5 (f.1) If, upon all the evidence at the hearing, [in those
6 cases alleging a violation of section 5(d), (e), (h) or 5.3
7 where the underlying complaint is a violation of section 5(h) or
8 5.3,] the Commission finds that a respondent has engaged in or
9 is engaging in any unlawful discriminatory practice as defined
10 in this act, the Commission may award attorney fees and costs to
11 prevailing complainants.
12 (f.2) If, upon all the evidence at the hearing, [in those
13 cases alleging a violation of section 5(d), (e), (h) or 5.3
14 where the underlying complaint is a violation of section 5(h) or
15 5.3,] the Commission finds that a respondent has not engaged in
16 or is not engaging in any unlawful discriminatory practice as
17 defined in this act, the Commission may award attorney fees and
18 costs to a prevailing respondent if the respondent proves that
19 the complaint was brought in bad faith.
20 * * *
21 (h) Any complaint filed pursuant to this section must be so
22 filed within [one hundred eighty] three hundred days after the
23 alleged act of discrimination, unless otherwise required by the
24 Fair Housing Act.
25 * * *
26 (j) (1) At the conclusion of the Commission's involvement
27 in a complaint, either party may request in writing a copy of
28 the Commission's file of the investigation. Records provided to
29 the requesting party shall be furnished at the requesting
30 party's expense, except that these charges shall be waived if:
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1 (i) the requesting party requests a waiver of charges due to
2 low family income; or
3 (ii) the Commission determines that the cost of producing
4 the records is de minimis. The Commission shall inform the
5 requesting party of the costs to produce the records, and the
6 requesting party shall remit this amount to the Commission prior
7 to release of the records, unless the charges are waived by the
8 Commission as provided above. The Commission shall produce the
9 records as soon as reasonably possible, but not later than
10 forty-five days from receipt of the written request for the
11 records, unless the required payment or request for waiver of
12 fees has not been received by the Commission within forty-five
13 days, in which case the Commission shall release the records
14 promptly upon receipt of payment or request for waiver of fees.
15 (2) The Commission shall not be required under this section
16 to release any of the following:
17 (i) A record not within its custody and control at the time
18 of the request.
19 (ii) A record, report, memorandum or communication dealing
20 with the internal practice, policy and procedure of the
21 Commission.
22 (iii) A record, report, memorandum or mental impression
23 prepared by a Commission attorney.
24 (iv) A record, report, memorandum or communication regarding
25 any endeavor to eliminate the unlawful discriminatory practice
26 complained of by conference, conciliation or persuasion, as
27 required by subsections (b)(4) and (c), commonly referred to as
28 "settlement negotiations."
29 (v) The identity and statements of a witness which the
30 Commission's investigatory file states, in writing, was obtained
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1 with an assurance of confidentiality to the witness.
2 (vi) Those investigatory records which constitute interim
3 mental impressions of a Commission employe about a case.
4 However, the final case analysis by the fact-finder supporting
5 his or her finding shall be produced.
6 (3) Any reasonably segregable portion of a record shall be
7 provided to any person requesting such record after deletion of
8 the portions which are exempt under paragraph (2).
9 (4) This section shall not create or alter any privilege
10 under the law.
11 Section 4. The act is amended by adding a section to read:
12 Section 9.1. Evidence of Complainant's Sexual Conduct in
13 Sexual Harassment Cases.--(a) In cases including allegations of
14 sexual harassment, evidence of specific instances of
15 complainant's past sexual conduct, opinion evidence of the
16 complainant's past sexual conduct and reputation evidence of the
17 complainant's past sexual conduct shall not be admissible in
18 proceedings under this act before the Commission or in court to
19 prove welcomeness by the complainant or the absence of injury to
20 the complainant, unless the injury alleged by the complainant is
21 in the nature of loss of consortium. This prohibition shall not
22 apply to past sexual conduct with the respondent where
23 welcomeness of respondent's alleged conduct by the complainant
24 is at issue and such evidence is otherwise admissible pursuant
25 to the rules of evidence.
26 (b) A respondent who proposes to offer evidence of the
27 complainant's past sexual conduct under subsection (a) shall
28 file a written motion and offer of proof at the time of a
29 Commission hearing or trial in court, wherever the case may be.
30 If, in connection with the Commission hearing or trial in court,
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1 the Commission or court determines that the motion and offer of
2 proof are sufficient on their faces, the Commission or court
3 shall order an in camera proceeding. If the Commission or court
4 finds that evidence offered by the respondent regarding the
5 sexual conduct of the complainant is relevant and that the
6 probative value of the evidence offered is not outweighed by its
7 collateral nature or the probability that its admission will
8 create undue prejudice, confusion of the issues or unwarranted
9 invasion of the privacy of the complainant, the Commission or
10 court shall enter an order setting forth with specificity what
11 evidence may be introduced and the reasons why the Commission or
12 court finds that such evidence satisfies the standards contained
13 in this section. The respondent may then offer evidence under
14 the order of the Commission or court.
15 Section 5. Section 12(c) and (f) of the act, amended
16 December 20, 1991 (P.L.414, No.51), are amended to read:
17 Section 12. Construction and Exclusiveness of Remedy.--
18 * * *
19 (c) (1) In cases involving a claim of discrimination, if a
20 complainant invokes the procedures set forth in this act, that
21 individual's right of action in the courts of the Commonwealth
22 shall not be foreclosed. If within [one (1) year] six (6) months
23 after the filing of a complaint with the Commission, the
24 Commission dismisses the complaint or has not entered into a
25 conciliation agreement to which the complainant is a party, the
26 Commission must so notify the complainant. [On] The notice shall
27 also inform the complainant that on receipt of such a notice the
28 complainant [shall be able] has the right to bring an action in
29 the courts of common pleas of the Commonwealth based on the
30 right to freedom from discrimination granted by this act.
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1 (2) In any action under this subsection any party may demand
2 a trial by jury.
3 [(2)] (3) An action under this subsection shall be filed
4 within two years after the date of notice from the Commission
5 closing the complaint. Any complaint so filed shall be served on
6 the Commission at the time the complaint is filed in court. The
7 Commission shall notify the complainant of this requirement.
8 [(3)] (4) If the court finds that the respondent has engaged
9 in or is engaging in an unlawful discriminatory practice charged
10 in the complaint, the court shall enjoin the respondent from
11 engaging in such unlawful discriminatory practice and order
12 affirmative action which may include, but is not limited to,
13 reinstatement or hiring of employes, granting of back pay, or
14 any other legal or equitable relief as the court deems
15 appropriate. Back pay liability shall not accrue from a date
16 more than three years prior to the filing of a complaint
17 charging violations of this act.
18 [(4)] (5) The court shall serve upon the Commission any
19 final order issued in any action brought under this subsection.
20 * * *
21 (f) Nothing in this act shall be [constructed] construed as
22 superseding any provision of the act of October 15, 1980
23 (P.L.950, No.164), known as the "Commonwealth Attorneys Act."
24 All court actions commenced by or against the Commission shall
25 be subject to the provisions of that act.
26 Section 6. The provisions of 16 Pa. Code §§ 45.8(a)
27 (relating to advertisements) and 45.13(f) (relating to
28 exemptions) are nullified.
29 Section 7. This act shall take effect in 60 days.
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