PRINTER'S NO. 3708
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2475
Session of
2018
INTRODUCED BY GALLOWAY, DAVIS, DERMODY, J. McNEILL, READSHAW,
SCHLOSSBERG, KINSEY, WATSON, DRISCOLL, DEAN, ROEBUCK, DeLUCA,
DEASY AND DALEY, JUNE 18, 2018
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JUNE 18, 2018
AN ACT
Amending the act of October 27, 1955 (P.L.744, No.222), entitled
"An act prohibiting certain practices of discrimination
because of race, color, religious creed, ancestry, age or
national origin by employers, employment agencies, labor
organizations and others as herein defined; creating the
Pennsylvania Human Relations Commission in the Governor's
Office; defining its functions, powers and duties; providing
for procedure and enforcement; providing for formulation of
an educational program to prevent prejudice; providing for
judicial review and enforcement and imposing penalties,"
further providing for definitions, for unlawful
discriminatory practices and for powers and duties of the
commission; providing for policies and procedures; and
further providing for procedure.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 4(b) and (c) of the act of October 27,
1955 (P.L.744, No.222), known as the Pennsylvania Human
Relations Act, are amended and the section is amended by adding
clauses to read:
Section 4. Definitions.--As used in this act unless a
different meaning clearly appears from the context:
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(b) The term "employer" includes the Commonwealth or any
political subdivision or board, department, commission or school
district thereof and any person employing [four] one or more
persons within the Commonwealth, but except as hereinafter
provided, does not include religious, fraternal, charitable or
sectarian corporations or associations, except such corporations
or associations supported, in whole or in part, by governmental
appropriations. The term "employer" with respect to
discriminatory practices based on race, color, age, sex,
national origin or non-job related handicap or disability,
includes religious, fraternal, charitable and sectarian
corporations and associations employing [four] one or more
persons within the Commonwealth.
(c) The term "employe" means an individual who performs work
for an employer for wages. The term "employe" does not include
(1) [any individual employed in agriculture or in the domestic
service of any person,] (Reserved) (2) any individuals who, as a
part of their employment, reside in the personal residence of
the employer, (3) any individual employed by said individual's
parents, spouse or child.
* * *
(bb) The term "intern" means a student or trainee who
performs work on a temporary basis for an employer under the
direct supervision of an existing employe in order to gain work
experience, regardless of whether the employer pays a wage to
the student or trainee.
(cc) The term "volunteer" means an individual who holds an
unpaid position under the direct supervision of an employe.
Section 2. Sections 5(a) and 7(f) of the act are amended to
read:
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Section 5. Unlawful Discriminatory Practices.--It shall be
an unlawful discriminatory practice, unless based upon a bona
fide occupational qualification, or in the case of a fraternal
corporation or association, unless based upon membership in such
association or corporation, or except where based upon
applicable security regulations established by the United States
or the Commonwealth of Pennsylvania:
(a) For any employer because of the race, color, religious
creed, ancestry, age, sex, national origin or non-job related
handicap or disability or the use of a guide or support animal
because of the blindness, deafness or physical handicap of any
individual, intern, volunteer or independent contractor, to
refuse to hire or employ or contract with, or to bar or to
discharge from employment such individual, intern, volunteer or
independent contractor, or to otherwise discriminate against
such individual, intern, volunteer or independent contractor
with respect to compensation, hire, tenure, terms, conditions or
privileges of employment or contract, if the individual, intern,
volunteer or independent contractor is the best able and most
competent to perform the services required. The provision of
this paragraph shall not apply, to (1) operation of the terms or
conditions of any bona fide retirement or pension plan which
have the effect of a minimum service requirement, (2) operation
of the terms or conditions of any bona fide group or employe
insurance plan, (3) age limitations placed upon entry into bona
fide apprenticeship programs of two years or more approved by
the State Apprenticeship and Training Council of the Department
of Labor and Industry, established by the act of July 14, 1961
(P.L.604, No.304), known as "The Apprenticeship and Training
Act." Notwithstanding any provision of this clause, it shall not
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be an unlawful employment practice for a religious corporation
or association to hire or employ on the basis of sex in those
certain instances where sex is a bona fide occupational
qualification because of the religious beliefs, practices, or
observances of the corporation, or association.
* * *
Section 7. Powers and Duties of the Commission.--The
Commission shall have the following powers and duties:
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(f) To initiate, receive, investigate and pass upon
complaints charging unlawful discriminatory practices and
violations of section 7.1.
* * *
Section 3. The act is amended by adding a section to read:
Section 7.1. Policies and Procedures.--(a) An employer
shall adopt written policies and procedures for preventing
harassment, discrimination and retaliation against employes. The
policies and procedures shall include, at a minimum, all of the
following:
(1) An explanation that harassment, discrimination and
retaliation are unlawful acts under Federal and State law.
(2) An explanation that sexual harassment is a form of
unlawful discrimination under Federal and State law.
(3) A complaint procedure to report and address harassment,
discrimination and retaliation claims, including a provision
allowing employes to report the claims to persons other than
their supervisor.
(4) The specific responsibilities of a supervisor in the
identification, prevention and reporting of harassment,
discrimination and retaliation.
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(5) An explanation of the procedures for maintaining
confidentiality surrounding the reporting of harassment,
discrimination and retaliation claims.
(6) A procedure for the timely, thorough and prompt
investigation of claims of harassment, discrimination and
retaliation filed by an employe.
(b) An employer shall make the policies and procedures
available and easily accessible to all employes.
(c) An employer shall review and update the policies for
harassment, discrimination and retaliation as needed to remain
in compliance with Federal and State law.
(d) An employer shall keep records of the current policies
and procedures and make them available for inspection by the
Commission upon request. If applicable, employers shall also
keep a record of the immediately preceding policies and
procedures for a period of three years after the effective date
of the current policies and procedures and make them available
for inspection by the Commission upon request.
(e) The Commission shall develop standard policies and
procedures that may be used by employers to satisfy the
requirements under clause (a). The policies and procedures shall
be made publicly available at no cost on the Commission's
publicly accessible Internet website.
(f) The Commission shall publish on its publicly accessible
Internet website, and transmit to the Legislative Reference
Bureau for publication in the Pennsylvania Bulletin, any changes
to Federal or State harassment, discrimination or retaliation
laws that would impact the standard policies and procedures
under clause (e) within 45 days of the changes. The Commission
may establish an electronic notification system to alert
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employers of changes to the standard policies and procedures.
(g) An employer who violates this section shall be subject
to a civil penalty of not less than one hundred dollars ($100)
nor more than five hundred dollars ($500) for the first
violation and not less than five hundred dollars ($500) nor more
than two thousand dollars ($2,000) for the second and each
subsequent violation. The Commission may waive the civil penalty
for a first-time violation of this section if, within sixty days
of the issuance of the notice of violation, the employer proves
to the satisfaction of the Commission that the violation has
been cured.
Section 4. Section 9(a), (c), (d), (d.1)(4) and (f)(1) and
(4) of the act are amended to read:
Section 9. Procedure.--(a) Any person claiming a violation
of section 7.1 or claiming to be aggrieved by an alleged
unlawful discriminatory practice may make, sign and file with
the Commission a verified complaint, in writing, which shall
state the name and address of the person, employer, labor
organization or employment agency alleged to have violated
section 7.1 or to have committed the unlawful discriminatory
practice complained of, and which shall set forth the
particulars thereof and contain such other information as may be
required by the Commission. Commission representatives shall not
modify the substance of the complaint. Whenever a person invokes
the procedures set forth in this act, the Commission shall
refuse to accept for filing a complaint it determines to be
untimely with no grounds for equitable tolling, outside its
jurisdiction or frivolous on its face. The Commission upon its
own initiative or the Attorney General may, in like manner,
make, sign and file such complaint. Any employer whose employes,
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or some of them, hinder or threaten to hinder compliance with
the provisions of this act may file with the Commission a
verified complaint, asking for assistance by conciliation or
other remedial action and, during such period of conciliation or
other remedial action, no hearings, orders or other actions
shall be taken by the Commission against such employer.
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(c) If it shall be determined after such investigation that
no probable cause exists for crediting the allegations of the
complaint, the Commission shall, within ten days from such
determination, cause to be issued and served upon the
complainant written notice of such determination, and the said
complainant or his attorney may, within ten days after such
service, file with the Commission a written request for a
preliminary hearing before the Commission to determine probable
cause for crediting the allegations of the complaint. If it
shall be determined after such investigation that probable cause
exists for crediting the allegations of the complaint, the
Commission shall immediately endeavor to cause compliance with
section 7.1 or to eliminate the unlawful discriminatory practice
complained of by conference, conciliation and persuasion. The
members of the Commission and its staff shall not disclose what
has transpired in the course of such endeavors: Provided, That
the Commission may publish the facts in the case of any
complaint which has been dismissed, and the terms of
conciliation when the complaint has been adjusted, without
disclosing, except as required by the Fair Housing Act, the
identity of the parties involved.
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(d) In case of failure so to cause compliance with section
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7.1 or eliminate such practice or in advance thereof, if in the
judgment of the Commission circumstances so warrant, the
Commission shall cause to be issued and served a written notice,
together with a copy of such complaint as the same may have been
amended, requiring the person, employer, labor organization or
employment agency named in such complaint, hereinafter referred
to as respondent, to answer the charges of such complaint at a
hearing before the Commission at a time and place to be
specified in such notice. The place of any such hearing shall be
in the county in which the alleged offense was committed.
(d.1) When notice of hearing is given as set forth in
subsection (d) and an election procedure is required by the Fair
Housing Act, either party may elect to have the claim asserted
in the complaint decided in a civil action brought under the
original jurisdiction of Commonwealth Court. The written notice
of the Commission shall be sent to all parties and will inform
them of their right to take civil action. An election must be
made within twenty days after receipt of the notice of hearing.
A party making this election shall notify the Commission and all
other parties. If an election for civil action is made by either
party, the Commission shall, within thirty days from the date of
election, commence and maintain a civil action on behalf of the
complainant provided, however, that, whenever the Attorney
General signs and files the complaint pursuant to subsection
(a), the Attorney General shall, within thirty days from the
date of election, commence and maintain a civil action on behalf
of the complainant. In those cases commenced by the Attorney
General, the Commission shall have the right to intervene. In
any action brought under this subsection:
* * *
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(4) If, after a trial, the Commonwealth Court finds that a
respondent has not violated section 7.1 or engaged in any
unlawful discriminatory practice as defined in this act, the
court may award attorney fees and costs to the prevailing
respondent if the court determines that the complaint is
frivolous and that the Commission dealt with the party
complained against in a wilful, wanton and oppressive manner, in
which case the Commission shall be ordered to pay such costs and
attorney fees.
* * *
(f) (1) If, upon all the evidence at the hearing, the
Commission shall find that a respondent has violated section 7.1
or engaged in or is engaging in any unlawful discriminatory
practice as defined in this act, the Commission shall state its
findings of fact, and shall issue and cause to be served on such
respondent an order requiring such respondent to cease and
desist from such unlawful discriminatory practice and to take
such affirmative action, including, but not limited to,
reimbursement of certifiable travel expenses in matters
involving the complaint, compensation for loss of work in
matters involving the complaint, hiring, reinstatement or
upgrading of employes, with or without back pay, admission or
restoration to membership in any respondent labor organization,
the making of reasonable accommodations, or selling or leasing
specified housing accommodations or commercial property upon
such equal terms and conditions and with such equal facilities,
services and privileges or lending money, whether or not secured
by mortgage or otherwise for the acquisition, construction,
rehabilitation, repair or maintenance of housing accommodations
or commercial property, upon such equal terms and conditions to
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any person discriminated against or all persons, and any other
verifiable, reasonable out-of-pocket expenses caused by such
unlawful discriminatory practice, provided that, in those cases
alleging a violation of section 5(d), (e) or (h) or 5.3 where
the underlying complaint is a violation of section 5(h) or 5.3,
the Commission may award actual damages, including damages
caused by humiliation and embarrassment, as, in the judgment of
the Commission, will effectuate the purposes of this act, and
including a requirement for report of the manner of compliance.
* * *
(4) If, upon all the evidence, the Commission shall find
that a respondent has not violated section 7.1 or engaged in any
such unlawful discriminatory practice, the Commission shall
state its findings of fact, and shall issue and cause to be
served on the complainant an order dismissing the said complaint
as to such respondent.
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Section 5. This act shall take effect in 90 days.
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