Regular Session 2017-2018 House Bill 2282 P.N. 3405

PRINTER'S NO. 3405

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2282

Session of

2018

INTRODUCED BY RABB, SCHLOSSBERG, MADDEN, SOLOMON, O'BRIEN, MURT,

DEAN, STURLA, DERMODY, KINSEY, D. MILLER, HANNA, A. DAVIS,

CONKLIN, CALTAGIRONE, DALEY, YOUNGBLOOD, BULLOCK, FRANKEL,

J. HARRIS, WARREN, DONATUCCI, PASHINSKI, HILL-EVANS,

SCHWEYER, McCLINTON AND GILLEN, APRIL 19, 2018

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, APRIL 19, 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

Pennsylvania Human Relations Commission; providing for

training; and further providing for procedure.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 4(c) of the act of October 27, 1955

(P.L.744, No.222), known as the Pennsylvania Human Relations

Act, is 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:

* * *

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, (2)] any individuals who, as a part of

their employment, reside in the personal residence of the

employer, [(3)] (2) 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:

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

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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

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:

* * *

(f) To initiate, receive, investigate and pass upon

complaints charging unlawful discriminatory practices and

violations of section 7.1.

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* * *

Section 3. The act is amended by adding a section to read:

Section 7.1. Training.--(a) An employer shall provide

interactive training regarding discrimination, harassment and

retaliation to all current employes of the employer within sixty

days of the effective date of this section and every two years

thereafter. An employer shall provide interactive training to

all new employes hired after the effective date of this section

within thirty days following the commencement of work by the

employe and on the two-year training schedule for all employes

thereafter. The interactive training shall include, at a

minimum, the following:

(1) An explanation of discrimination, harassment and

retaliation as unlawful acts under Federal and State law.

(2) An explanation of sexual harassment as a form of

unlawful discrimination under Federal and State law.

(3) Examples of different acts and behavior that could be

considered unlawful discrimination, harassment and retaliation.

(4) Examples of different acts and behavior that could be

considered sexual harassment.

(5) Bystander intervention and other strategies that are

found to be effective in the prevention of harassment.

(6) The effects of discrimination and harassment on victims

and the workplace.

(7) The consequences of being found to be in violation of

Federal or State law prohibiting discrimination, harassment and

retaliation.

(8) A description of the employer's internal complaint

policies and procedures available to employes to report and

address discrimination, harassment and retaliation claims.

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(9) The process available to file a complaint with the

Commission and the United States Equal Employment Opportunity

Commission, along with contact information.

(b) Employers shall provide additional interactive training

relating to discrimination, harassment and retaliation to all

current supervisors employed by the employer within sixty days

of the effective date of this section and every two years

thereafter. An employer shall provide interactive training to

all new supervisors hired or promoted after the effective date

of this section within thirty days of the commencement of a

supervisory position. The training shall include, at a minimum,

the following:

(1) The specific responsibilities of supervisors in the

identification and prevention of discrimination, harassment and

retaliation.

(2) A description of the employer's internal complaint

policies and procedures available to employes to report and

address discrimination, harassment and retaliation claims.

(3) Measures that supervisors should take to appropriately

address complaints of discrimination, harassment and

retaliation.

(4) The consequences of failing to address complaints of

discrimination, harassment and retaliation.

trainings provided by the employer as required under clauses (a)

and (b), including the following:

(1) The title and content of the interactive training.

(2) The date, time and duration of the interactive training.

(3) A certification documenting the completion of training

by each employe and supervisor of the employer.

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Employers shall maintain the training records for at least

three years and the records shall be made available for

inspection by the Commission upon request.

(d) The Commission shall develop online interactive training

modules that may be used by employers to satisfy the

requirements of clauses (a) and (b). The modules shall be made

available at no cost on the Commission's publicly accessible

Internet website. The modules shall allow for the electronic

provision of a certification documenting that an employe or

supervisor completed training through the Commission's modules.

If an employer uses the Commission's interactive training

modules to satisfy the requirements of clauses (a) and (b), the

employer shall supplement such training by providing a

description of the employer's internal complaint policies and

procedures available to employes to report and address

discrimination, harassment and retaliation claims.

(e) The interactive training required by this section is

intended to establish a minimum threshold. An employer may offer

more frequent and additional training.

(f) An employer who violates this section shall be liable

for a civil penalty of not less than five hundred dollars ($500)

and not more than one thousand dollars ($1,000) for the first

violation and not less than one thousand dollars ($1,000) and

not more than five thousand dollars ($5,000) for the second or

each subsequent violation. The Commission may waive the civil

penalty for a first-time violation of this section if the

employer proves to the satisfaction of the Commission, within

sixty days of the issuance of the notice of violation, that the

violation has been cured.

(g) As used in this section, the following words and phrases

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shall have the meanings given to them in this subsection unless

the context clearly indicates otherwise:

(1) The term "interactive training" means participatory

instruction, whether in person or Internet-based, provided to an

employe in a manner that allows the employe to interact with the

instructor through the use of traditional learning techniques or

computer-based learning or a combination of both.

(2) The term "supervisor" means an employe who has authority

to undertake or recommend tangible employment decisions

affecting other employes or direct the daily work activities of

other employes.

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.

* * *

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.

* * *

(d) In case of failure so to cause such compliance or

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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 comply with

section 7.1 or 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

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equal terms and conditions to 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.

* * *

Section 5. This act shall take effect in 90 days.

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