Regular Session 2021-2022 Senate Bill 0912 P.N. 1187

PRINTER'S NO. 1187

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

912

Session of

2021

INTRODUCED BY SAVAL, STREET, MUTH, HUGHES, KANE, KEARNEY, COSTA,

CAPPELLETTI, HAYWOOD, L. WILLIAMS AND COMITTA,

OCTOBER 27, 2021

REFERRED TO URBAN AFFAIRS AND HOUSING, OCTOBER 27, 2021

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; prohibiting use of

criminal history and retaliation relating to use of criminal

history; providing for notice to prospective occupants and

tenants related to use of criminal history and for exclusions

and other legal requirements related to use of criminal

history; and further providing for procedure and for civil

penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 4 of the act of October 27, 1955

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

Act, is amended by adding clauses to read:

Section 4. Definitions.--As used in this act unless a

different meaning clearly appears from the context:

* * *

(bb) The term "accessory dwelling unit" means one or more

rooms that are located within a principle residence, or within

an accessory structure on the same lot as a principal residence,

that is designed, arranged and intended to be occupied by not

more than one household as living accommodations independent

from any other household and is so occupied or vacant.

(cc) The term "adverse action" means:

(1) refusing to engage in or negotiate a rental real estate

transaction;

(2) denying tenancy;

(3) representing that a housing accommodation is not

available for inspection, rental or lease when in fact it is so

available;

(4) failing or refusing to add a household member to an

existing lease;

(5) expelling or evicting, or threatening to expel or evict,

an occupant from a housing accommodation or otherwise making

unavailable or denying a housing accommodation;

(6) creating conditions that make a housing accommodation

uninhabitable or unsafe for an occupant;

(7) applying different terms, conditions or privileges to a

rental real estate transaction, including, but not limited to,

the setting of rates for rental or lease, establishment of

damage deposits or other financial conditions for rental or

lease or in the furnishing of facilities or services in

connection with the transaction;

(8) refusing or intentionally failing to list a housing

accommodation for rent or lease;

(9) refusing or intentionally failing to show a housing

accommodation listed for rent or lease;

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(10) refusing or intentionally failing to accept or transmit

a reasonable offer to lease or rent a housing accommodation;

(11) terminating a lease; or

(12) threatening, penalizing, retaliating or otherwise

discriminating against an individual for any reason prohibited

by section 5.4.

(dd) The term "arrest record" means information indicating

that a person has been apprehended, detained, taken into

custody, held for investigation or restrained by a law

enforcement department, military authority or United States

Immigration and Customs Enforcement due to an accusation or

suspicion that the person committed a crime. The term includes a

pending criminal charge where the accusation has not yet

resulted in a final judgment, disposition, adjudication,

acquittal, conviction, plea, dismissal or withdrawal.

(ee) The term "consumer report" means a written, oral or

other communication of information by a consumer reporting

agency bearing on a consumer's creditworthiness, credit standing

or credit capacity.

(ff) The term "consumer reporting agency" means a person

which, for monetary fees, dues or on a cooperative nonprofit

basis, regularly engages in whole or in part in the practice of

assembling or evaluating consumer credit information or other

information on consumers for the purpose of furnishing consumer

reports to third parties.

(gg) The term "conviction record" means information

regarding a finding or verdict of guilty, an adjudication of

delinquency whether deferred or otherwise, a final disposition

of a summary offense, an admission of guilt or a plea of nolo

contendere.

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(hh) The term "criminal history" has the same meaning as

criminal history record information in 18 Pa.C.S. § 9102

(relating to definitions).

(ii) The term "fair chance housing" means a practice that

reduces barriers to housing accommodations for persons with

criminal histories in accordance with section 5.4.

(jj) The term "landlord" means a person that owns, manages

or operates a housing accommodation for rent or a housing

accommodation that is offered or advertised as available for

rent.

(kk) The term "legitimate business reason" means a reason

that exists when a policy or practice is necessary to protect

resident safety or to protect property, in light of the

following factors:

(1) The nature and the severity of the offense underlying

the conviction as indicated by the Commonwealth through such

techniques as gradation and gravity score.

(2) The time that has elapsed since the date of conviction,

provided that the landlord may not consider a conviction that

occurred more than two years prior to the adverse action as a

factor supporting a legitimate business reason for taking an

adverse action. For purposes of this subclause, the term

"conviction" means a finding of guilt or a plea of guilty or

nolo contendere, whether or not a judgment of sentence has been

imposed as determined by the law of the jurisdiction in which

the prosecution was held, except that the term does not include

a conviction that has been expunged or overturned or for which

an individual has been pardoned or an order of accelerated

rehabilitative disposition.

(3) Supplemental information related to the person's

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rehabilitation, good conduct and additional facts or

explanations provided by the person, if the person chooses to do

so. For purposes of this subclause, review of conviction

information is limited to those convictions included in registry

information.

(ll) The term "minor" means an individual under the age of

18 years.

(mm) The term "prospective occupant" means a person who

seeks to lease, sublease or rent a housing accommodation.

(nn) The term "registry information" means information

solely obtained from a county, statewide or national sex

offender registry, including a registrant's physical

description, address and conviction description and dates.

(oo) The term "supplemental information" means information

produced by a prospective occupant or tenant, or produced on the

individual's behalf, with respect to the individual's

rehabilitation or good conduct, including:

(1) written or oral statement from the prospective occupant

or the tenant;

(2) written or oral statement from a current or previous

employer;

(3) written or oral statement from a current or previous

landlord;

(4) written or oral statement from a member of the judiciary

or law enforcement, parole or probation officer or person that

provides similar services;

(5) written or oral statement from a member of the clergy,

counselor, therapist, social worker, community or volunteer

organization or person or institution that provides similar

services;

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(6) certificate of rehabilitation;

(7) certificate of completion or enrollment in an

educational or vocational training program, including an

apprenticeship program; or

(8) certificate of completion or enrollment in a drug or

alcohol treatment program or certificate of completion or

enrollment in a rehabilitation program.

(pp) The term "tenant" means an individual who occupies or

holds possession of a housing accommodation according to a

rental agreement.

Section 2. The act is amended by adding sections to read:

Section 5.4. Prohibited Use of Criminal History.--(a) It is

an unlawful discriminatory practice for any person to:

(1) Advertise, publicize or implement a policy or practice

that automatically or categorically excludes individuals with an

arrest record, conviction record, conditions of sentence or

criminal history from a housing accommodation offered for rent

or lease.

(2) Require disclosure, inquire about or take an adverse

action against a prospective occupant, a tenant or a member of

their household, based on an arrest record, conviction record,

or criminal history, except for information under paragraph (3)

and subject to the exclusions and legal requirements in section

5.7.

(3) Carry out an adverse action based on registry

information of a prospective adult occupant, an adult tenant or

an adult member of their household, unless the landlord has a

legitimate business reason for taking the action.

(4) Carry out an adverse action based on registry

information regarding a prospective occupant who is a minor, a

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minor tenant, or a minor member of their household.

(5) Carry out an adverse action based on registry

information regarding a prospective occupant who is an adult, an

adult tenant or an adult member of their household if the

conviction occurred when the individual was a minor or a minor

tried as an adult.

(b) If a landlord takes an adverse action based on a

legitimate business reason, the landlord shall provide written

notice by email, mail or in person of the adverse action to the

prospective occupant or the tenant and state the specific

registry information that was the basis for the adverse action.

If a prospective occupant provides supplemental information

regarding rehabilitation, the landlord must explain why, in

light of the supplemental information, a legitimate business

reason remains.

the screening process, the landlord must provide a free copy of

the consumer report to the prospective occupant or tenant in the

event of a denial or other adverse action, and the landlord must

provide the prospective occupant or tenant with an opportunity

to dispute the accuracy of information appearing in the consumer

report.

Section 5.5. Retaliation Prohibited Relating to Use of

Criminal History.--(a) It is an unlawful discriminatory

practice for any person to:

(1) Interfere with, restrain or deny the exercise of, or the

attempt to exercise, a right protected under section 5.4.

(2) Take adverse action against another person because the

other person exercised in good faith the rights protected under

section 5.4. The rights include the following:

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(i) The right to fair chance housing accommodations and

regulation of the use of criminal history under section 5.4.

(ii) The right to make inquiries about the rights protected

under section 5.4.

(iii) The right to inform others about their rights under

section 5.4.

(iv) The right to inform the person's legal counsel or

another person about an alleged violation of section 5.4.

(v) The right to file an oral or written complaint with the

Commission for an alleged violation of section 5.4.

(vi) The right to cooperate with the Commission in its

investigations of section 5.4.

(vii) The right to testify in a proceeding under or related

to section 5.4.

(viii) The right to refuse to participate in an activity

that would result in a violation of section 5.4.

(ix) The right to oppose any policy, practice or act that is

unlawful under section 5.4.

(3) Communicate to another person exercising rights

protected under this section, directly or indirectly, the

willingness to inform a government employee that the other

person is not lawfully in the United States or to report, or to

make an implied or express assertion of a willingness to report,

suspected citizenship or immigration status of a prospective

occupant, a tenant or a member of their household to a Federal,

State or local agency because the prospective occupant or tenant

has exercised a right under this section or section 5.4.

(4) Communicate to another person exercising rights

protected under this section, directly or indirectly, the

willingness to take an action so as to cause an issue with the

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other person's probation or parole through contacting a person

responsible for the other person's supervision.

(b) It shall be a rebuttable presumption of retaliation if a

landlord or person takes an adverse action against another

person within 90 days of the other person's exercise of rights

protected under this section. The landlord or person who took

the adverse action may rebut the presumption with clear and

convincing evidence that the adverse action was taken for a

permissible purpose.

sufficient upon a showing that a landlord or person has taken an

adverse action against another person and the other person's

exercise of rights protected under this section was a motivating

factor in the adverse action, unless the landlord or person who

took the adverse action can prove that the action would have

been taken in the absence of the protected activity.

(d) The protections afforded under this section shall apply

to a person who mistakenly, but in good faith, alleges

violations of this section and section 5.4.

(e) A complaint or other communication by any person

triggers the protections of this section regardless of whether

the complaint or communication is in writing or makes explicit

reference to this section or section 5.4.

Section 5.6. Notice to Prospective Occupants and Tenants

Related to Use of Criminal History.--(a) A landlord shall

provide written notice to prospective occupants and tenants that

the landlord is prohibited from requiring disclosure, asking

about, rejecting an applicant or taking adverse action based on

an arrest record, conviction record or criminal history, except

for information under section 5.4(a)(3) and subject to the

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exclusions and legal requirements in section 5.7.

(b) If the landlord uses a criminal history record check on

a prospective occupant or tenant for information under section

5.4(a)(3), the landlord must provide a free copy of the criminal

history record check to the prospective tenant or occupant.

section 5.4(a)(3), the landlord must provide notice of an

applicant's ability to provide supplemental information related

to the applicant's rehabilitation, good conduct and facts or

explanations regarding the applicant's registry information.

(d) The Commission shall adopt a rule or rules to enforce

this section.

Section 5.7. Exclusions and Other Legal Requirements Related

to Use of Criminal History.--(a) Sections 5.4 and 5.5 shall not

be interpreted or applied to diminish or conflict with a

requirement of Federal or State law. In the event of a conflict,

the Federal or State law requirement shall supersede the

requirements of this section.

(b) Sections 5.4 and 5.5 shall not apply to the renting,

subrenting, leasing or subleasing of the personal residence of

the landlord.

subrenting, leasing or subleasing of an accessory dwelling unit

or detached accessory dwelling unit in which the owner or person

entitled to possession maintains a bona fide residence, home or

abode on the same lot.

(d) Sections 5.4 and 5.5 shall not be construed to

discourage or prohibit a landlord from adopting screening

policies that are more generous to prospective occupants and

tenants than the requirements of those sections.

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Section 3. Sections 9(f), (f.1) and (f.2) and 9.3 of the act

are amended to read:

Section 9. Procedure.--* * *

(f) (1) If, upon all the evidence at the hearing, the

Commission shall find that a respondent has 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 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, or in those cases alleging a

violation of section 5.4 or 5.5, the Commission may award actual

damages, including damages caused by humiliation and

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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.

(2) Such order may also assess a civil penalty against the

respondent in a complaint of discrimination filed under sections

5(h) [or], 5.3, 5.4 or 5.5:

(i) in an amount not exceeding ten thousand dollars

($10,000) if the respondent has not been adjudged to have

committed any prior discriminatory practice;

(ii) in an amount not exceeding twenty-five thousand dollars

($25,000) if the respondent has been adjudged to have committed

one other discriminatory practice during the five-year period

ending on the date of this order; or

(iii) in an amount not exceeding fifty thousand dollars

($50,000) if the respondent has been adjudged to have committed

more than one other discriminatory practice during the seven-

year period ending on the date of this order.

If, however, the acts constituting the discriminatory practice

that is the object of the charge are committed by the same

natural person who has been previously adjudged to have

committed acts constituting a discriminatory practice, then the

civil penalties set forth in subparagraphs (ii) and (iii) may be

imposed without regard to the period of time within which any

subsequent discriminatory practice occurred.

(3) When the respondent is a licensee of the Commonwealth,

the Commission shall inform the appropriate State licensing

authority of the order with the request that the licensing

authority take such action as it deems appropriate against such

licensee. An appeal from the Commission's order shall act as a

supersedeas and stay such action by the State licensing

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authority until a final decision on said appeal.

(4) If, upon all the evidence, the Commission shall find

that a respondent has not 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.

(f.1) If, upon all the evidence at the hearing, in those

cases alleging a violation of section 5(d), (e), (h) or 5.3

where the underlying complaint is a violation of section 5(h) or

5.3, or in those cases alleging a violation of section 5.4 or

5.5, the Commission finds that a respondent has engaged in or is

engaging in any unlawful discriminatory practice as defined in

this act, the Commission may award attorney fees and costs to

prevailing complainants.

(f.2) If, upon all the evidence at the hearing, in those

cases alleging a violation of section 5(d), (e), (h) or 5.3

where the underlying complaint is a violation of section 5(h) or

5.3, or in those cases alleging a violation of section 5.4 or

5.5, the Commission finds that a respondent has not engaged in

or is not engaging in any unlawful discriminatory practice as

defined in this act, the Commission may award attorney fees and

costs to a prevailing respondent if the respondent proves that

the complaint was brought in bad faith.

* * *

Section 9.3. Civil Penalties.--The Commission shall have the

power to adopt a schedule of civil penalties for violation of

section 5(h)(5) or 5.4(1) by the advertiser and the publisher in

instances where the complainant does not take action to secure

housing accommodations or financing and is not denied housing

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accommodations or financing based on the alleged discriminatory

language in the advertisement. The schedule of penalties,

guidelines for their imposition and procedures for appeal shall

be published in the Pennsylvania Bulletin, provided that the

Commission shall, within two (2) years of such publication,

promulgate a regulation setting forth the schedule of penalties,

guidelines and procedures. Any such penalty shall not exceed the

sum of five hundred dollars ($500.00). Duly authorized agents of

the Commission shall have the power and authority to issue

citations and impose penalties for any such violations. Any such

penalty imposed may be appealed to the Commission pursuant to

regulations promulgated under this act. All proceedings shall be

conducted in accordance with the provisions of 2 Pa.C.S.

(relating to administrative law and procedure).

Section 4. This act shall take effect in 60 days.

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