PRINTER'S NO. 743
No. 609 Session of 2003
INTRODUCED BY HUGHES, FERLO, LOGAN AND STOUT, APRIL 24, 2003
REFERRED TO EDUCATION, APRIL 24, 2003
AN ACT
1 Amending the act of July 17, 1961 (P.L.776, No.341), entitled,
2 as amended, "An act declaring the policy of the Commonwealth
3 with regard to discriminatory practices in educational
4 institutions based upon race, religion, color, ancestry,
5 national origin or sex; prohibiting such discriminatory
6 practices; providing for procedure and enforcement; providing
7 for judicial review; providing for administration by the
8 Pennsylvania Human Relations Commission in the Department of
9 Labor and Industry; and defining its functions, powers and
10 duties hereunder," further providing for findings and
11 declaration of policy, for definitions, for unfair
12 educational practices, for powers and duties of the
13 Pennsylvania Human Relations Commission, for right of action
14 and for construction of act.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. The title of the act of July 17, 1961 (P.L.776,
18 No.341), known as the Pennsylvania Fair Educational
19 Opportunities Act, amended December 29, 1972 (P.L.1682, No.360),
20 is amended to read:
21 AN ACT
22 Declaring the policy of the Commonwealth with regard to
23 discriminatory practices in educational institutions based
24 upon race, class, religion, color, ancestry, national origin
1 [or], sex, sexual orientation, gender identity or expression; 2 prohibiting such discriminatory practices; providing for 3 procedure and enforcement; providing for judicial review; 4 providing for administration by the Pennsylvania Human 5 Relations Commission in the Department of Labor and Industry; 6 and defining its functions, powers and duties hereunder. 7 Section 2. Section 2 of the act, amended December 22, 1992 8 (P.L.1688, No.187), is amended to read: 9 Section 2. Findings and Declaration of Policy.--(a) It is 10 hereby declared to be the policy of this Commonwealth that all 11 persons shall have equal opportunities for education regardless 12 of their race, class, religion, color, ancestry, national 13 origin, sex, sexual orientation, gender identity or expression, 14 handicap or disability. 15 (b) Equality of educational opportunities requires that 16 students, otherwise qualified, be admitted to certain 17 educational institutions without regard to race, class, 18 religion, color, ancestry, national origin, sex, sexual 19 orientation, gender identity or expression, handicap or 20 disability. 21 (c) It is recognized that there is a fundamental American 22 right for members of various religious faiths to establish and 23 maintain educational institutions exclusively or primarily for 24 students of their own religious faith. In such institutions 25 students, otherwise qualified, should have equal opportunity to 26 attend therein without discrimination because of race, class, 27 color, ancestry, national origin, sexual orientation, gender 28 identity or expression, handicap or disability or, except as 29 provided in section 9, sex. 30 (d) This act shall be deemed an exercise of the police power 20030S0609B0743 - 2 -
1 of the Commonwealth for the protection of the public welfare, 2 prosperity, health and peace of the people of the Commonwealth 3 of Pennsylvania. 4 Section 3. Section 3 of the act is amended by adding clauses 5 to read: 6 Section 3. Definitions.--As used in this act-- 7 * * * 8 (9) "Sexual orientation" means a person's actual or 9 perceived heterosexuality, homosexuality or bisexuality. 10 (10) "Gender identity" means a person's self-identification 11 as male or female, distinguished from the person's biological 12 sex. 13 (11) "Sex" means the gender of a person, as perceived, 14 presumed or assumed by others, including those who are changing 15 or who have changed their gender identification. 16 Section 4. Sections 4(a) and (a.1), 6(4), 7.1 and 9(a) and 17 (c) of the act, amended or added December 22, 1992 (P.L.1688, 18 No.187), are amended to read: 19 Section 4. Unfair Educational Practices.--(a) Except as 20 provided in section 9, it shall be an unfair educational 21 practice for an educational institution-- 22 (1) To exclude or limit, or otherwise discriminate, because 23 of race, class, religion, color, ancestry, national origin, sex, 24 sexual orientation, gender identity or expression, handicap or 25 disability, against any student or students seeking admission as 26 students to such institutions: Provided, That it shall not be 27 unfair educational practice for any educational institution to 28 use criteria other than race, class, religion, color, ancestry, 29 national origin, sex, sexual orientation, gender identity or 30 expression, handicap or disability in the admission of students. 20030S0609B0743 - 3 -
1 (2) To make any written or oral inquiry prior to admission 2 concerning or designed to elicit information as to the race, 3 class, religion, color, ancestry, national origin, sex, sexual 4 orientation, gender identity or expression, handicap or 5 disability of a student seeking admission to such institution. 6 (3) To expel, suspend, punish, deny facilities or otherwise 7 discriminate against any student because of race, class, 8 religion, color, ancestry, national origin, sex, sexual 9 orientation, gender identity or expression, handicap or 10 disability. 11 (4) To penalize or discriminate against any individual 12 because he has initiated, testified, participated or assisted in 13 any proceedings under this act. 14 (5) To fail to preserve for a period of three years any 15 records, documents and data dealing with, or pertaining to, the 16 admission, rejection, expulsion or suspension of students, or to 17 refuse to make such records, documents and data available at all 18 times for the inspection of the commission. 19 (6) To construct, operate or otherwise make available 20 facilities and services which are not accessible. 21 (7) To exclude, limit or otherwise discriminate against any 22 student or applicant because of the handicap or disability of an 23 individual with whom the student or applicant is known to have a 24 relationship or association. 25 (8) To deny an individual with a handicap or disability 26 equal opportunities for education because of uninsurability or 27 increased cost of insurance. 28 (a.1) Except as provided in section 9, it shall be an unfair 29 educational practice for a religious educational institution-- 30 (1) To exclude or limit, or otherwise discriminate, because 20030S0609B0743 - 4 -
1 of race, class, color, ancestry, national origin, sex, sexual 2 orientation, gender identity or expression, handicap or 3 disability, against any student or students seeking admission as 4 students to such institutions: Provided, That it shall not be 5 unfair educational practice for any religious educational 6 institution to use criteria other than race, class, color, 7 ancestry, national origin, sex, sexual orientation, gender 8 identity or expression, handicap or disability in the admission 9 of students. 10 (2) To make any written or oral inquiry prior to admission 11 concerning or designed to elicit information as to the race, 12 class, color, ancestry, national origin, sex, sexual 13 orientation, gender identity or expression, handicap or 14 disability of a student seeking admission to such institution. 15 (3) To expel, suspend, punish, deny facilities or otherwise 16 discriminate against any student because of race, class, color, 17 ancestry, national origin, sex, sexual orientation, gender 18 identity or expression, handicap or disability. 19 (4) To penalize or discriminate against any individual 20 because such person has initiated, testified, participated or 21 assisted in any proceedings under this act. 22 (5) To construct, operate or otherwise make available 23 facilities and services which are not accessible. 24 (6) To exclude, limit or otherwise discriminate against any 25 student or applicant because of the handicap or disability of an 26 individual with whom the student or applicant is known to have a 27 relationship or association. 28 (7) To deny an individual with a handicap or disability 29 equal opportunities for education because of uninsurability or 30 increased cost of insurance. 20030S0609B0743 - 5 -
1 * * * 2 Section 6. Powers and Duties of the Commission.--Without in 3 anywise detracting from, or in derogation or diminution of the 4 duties of the commission as set forth in the act of October 27, 5 1955 (P.L.744), known as the "Pennsylvania Human Relations Act," 6 said commission is hereby vested with the following powers and 7 duties-- 8 * * * 9 (4) To formulate, recommend and carry out a comprehensive 10 program designed to eliminate and prevent prejudice and 11 discrimination in educational institutions, based upon race, 12 class, religion, color, ancestry, national origin, sex, sexual 13 orientation, gender identity or expression, handicap or 14 disability except religious discrimination in religious or 15 denominational institutions and except, as to sex, as provided 16 in section 9. 17 * * * 18 Section 7.1. Right of Action.--(a) In cases involving a 19 claim of discrimination, if a complainant invokes the procedures 20 set forth in this act, that individual's right of action in the 21 courts of the Commonwealth shall not be foreclosed. If, within 22 one year after the filing of a complaint with the commission, 23 the commission dismisses the complaint or has not entered into a 24 conciliation agreement to which the complainant is a party, the 25 commission must so notify the complainant. On receipt of such a 26 notice, the complainant shall be able to bring an action in the 27 courts of common pleas of the Commonwealth based on the right to 28 freedom from discrimination granted by this act. 29 (b) An action under this section shall be filed within two 30 years after the date of notice from the commission closing the 20030S0609B0743 - 6 -
1 complaint. Any complaint so filed shall be served on the 2 commission at the time the complaint is filed in court. The 3 commission shall notify the complainant of this requirement. 4 (c) If the court finds that the respondent has engaged in or 5 is engaging in an unlawful discriminatory practice charged in 6 the complaint, the court shall enjoin the respondent from 7 engaging in such unlawful discriminatory practice and order 8 affirmative action which may include, but not be limited to, 9 reinstatement, admitting students, reimbursement of tuition or 10 fees, or any other legal or equitable relief as the court deems 11 appropriate. 12 (d) The court shall serve upon the commission any final 13 order issued in any action brought under this section. 14 (e) If, after a trial held pursuant to subsection (a), the 15 court of common pleas finds that a defendant engaged in or is 16 engaging in any unlawful discriminatory practice as defined in 17 this act, the court may award attorney fees and costs to the 18 prevailing plaintiff. 19 (f) If, after a trial held pursuant to subsection (a), the 20 court of common pleas finds that a defendant has not engaged in 21 or is not engaging in any unlawful discriminatory practice as 22 defined in this act, the court may award attorney fees and costs 23 to the prevailing defendant if the defendant proves that the 24 complaint was brought in bad faith. 25 (g) The time limits for filing any complaint or other 26 pleading under this act shall be subject to waiver, estoppel and 27 equitable tolling. 28 (h) Nothing in this act shall be construed as superseding 29 any provision of the act of October 15, 1980 (P.L.950, No.164), 30 known as the "Commonwealth Attorneys Act." All court actions 20030S0609B0743 - 7 -
1 commenced by or against the commission shall be subject to the 2 provisions of that act. 3 (i) In any action under this section, any party may demand a 4 trial by jury. 5 Section 9. Construction.--(a) The provisions of this act 6 shall be construed liberally for the accomplishment of the 7 purposes thereof and any law inconsistent with any provisions 8 hereof shall not apply. Nothing contained in this act shall be 9 deemed to repeal any of the provisions of any law of this 10 Commonwealth relating to discrimination because of race, class, 11 religion, color, ancestry, national origin, sex, sexual 12 orientation, gender identity or expression, handicap or 13 disability. This act shall not be construed to prohibit any 14 educational institution which is neither State-owned nor State- 15 related, nor State-aided, from drawing its enrollment entirely 16 from members of one sex or from the sexes in any proportion, nor 17 shall anything herein contained prevent any educational 18 institution which is State-owned, State-related or State-aided 19 from requiring each applicant for admission to state in the 20 application for admission such applicant's sex to supplement and 21 implement the institution's facts for planning purposes but only 22 for such planning purposes and not for any discriminatory 23 purposes. For the purpose of this section the term "State-owned" 24 institution means the institutions comprising the State System 25 of Higher Education; the term "State-related" institutions means 26 the University of Pittsburgh, Temple University, Lincoln 27 University and the Pennsylvania State University; the term 28 "State-aided" institution means the Delaware Valley College of 29 Science and Agriculture, Drexel University, Hahnemann 30 University, Thomas Jefferson University, the Medical College of 20030S0609B0743 - 8 -
1 Pennsylvania, University of Pennsylvania, Pennsylvania College 2 of Podiatric Medicine, Pennsylvania College of Optometry, 3 Philadelphia College of Osteopathic Medicine, Philadelphia 4 College of Textiles and Science, and University of the Arts. 5 * * * 6 (c) Except as provided in section 7.1, nothing contained in 7 this act shall be deemed to repeal or supersede any of the 8 provisions of any existing or hereafter adopted municipal 9 ordinance, municipal charter or of any law of this Commonwealth 10 relating to discrimination because of race, class, color, 11 ancestry, age, sex, sexual orientation, gender identity or 12 expression, religion, national origin or handicap or disability. 13 As to acts declared unlawful by section 4, the procedure 14 provided in section 7.1 shall, when invoked, be exclusive. Any 15 final determination under section 7.1 shall exclude any other 16 action, civil or criminal, based on the same grievance without 17 resorting to the procedure provided in this act, and such 18 complainant may not subsequently resort to the procedure in this 19 act. In the event of a conflict between the interpretation of a 20 provision of this act and the interpretation of a similar 21 provision contained in any municipal ordinance, the 22 interpretation of the provision in this act shall apply to the 23 municipal ordinance. 24 Section 5. This act shall take effect in 60 days. D3L24MSP/20030S0609B0743 - 9 -