Under the new regulations “religious creed” as used in the PHRA, includes the failure to provide a reasonable accommodation for a religious observance or practice. This definition is consistent with the case law, but the dramatic changes, at least in terms of their specificity, related to sex and race discrimination.
Under the new regulations, “sex” as used in the PHRA, includes discrimination based upon pregnancy; childbirth; breastfeeding; sex assigned at birth; gender, which includes gender identity; affectional or sexual orientation, which includes heterosexuality, homosexuality, bisexuality and asexuality; and, differences of sex development which include “variations of sex characteristics or other intersex characteristics”. Each of these terms is defined specifically in the regulation. For example, “gender identity” means “having or being perceived as having a gender-related identity, appearance, expression or behavior which may or may not be stereotypically associated with the person’s sex assigned at birth.” Interestingly, the regulations include a specific protection relating to the perception or presumption of an employee’s affectional or sexual orientation. The regulations, with great specificity, expand the definition of the protected class for sex discrimination, with a focus on protections for the LGBTQ community.
Under the new regulations, “race” as used in the PHRA, includes ancestry; national origin and ethnic characteristics; interracial “marriage or association”; “traits historically associated with race” including hair texture and protective hairstyles; persons of Hispanic national origin or ancestry; and, persons of any other national origin or ancestry. Each of these terms is also defined in the regulation. For example, “ethnic characteristics” refers to skin and hair color, body size and facial features, linguistic characteristics, cultural characteristics and environmental characteristics such as living in the same area or region. “Traits associated with race” refers to hair texture and protective hairstyles, such as braids, locks or twists. The regulation’s focus on protecting cultural and ethnic traditions, down to protecting discrimination based on the geographic area where an employee lives, creates interesting challenges. It would be nearly impossible to avoid address information in the hiring process.
The PHRC has taken the position that the PHRA already prohibited discrimination based on these considerations, and conducts its investigations based on these criteria. In 2020, the United States Supreme Court decided in Bostock v. Clayton County, that discrimination “because of sex” prohibited by Title VII included discrimination on the basis of sexual orientation and gender identity. Philadelphia’s Fair Practices Ordinance also prohibits discrimination on the basis of sexual orientation, along with other categories. Just based on existing law, employers should have training and policies that prohibit gender identity and sexual orientation discrimination, but the new regulations provide a level of specificity that is new to Pennsylvania law.
With regard to race discrimination, some jurisdictions include protections from discrimination on the basis of “traits associated with race” such as hair texture and protective hairstyles, in laws prohibiting discrimination. Some states and municipalities have versions of a “Creating a Respectful and Open World for Natural Hair” Act or CROWN Act. The United States House of Representatives passed a CROWN Act in March of 2022, but the bill has not moved further. The new Pennsylvania regulations, and proposed and existing CROWN Acts, as well as the language of the PHRA and federal anti-discrimination statutes, require employers to consider training and policies that prohibit discrimination on the basis of “traits associated with race.”
Given that many of these categories are already protected in one way or another by federal, state or local laws, compliance should not present a challenge. However, handbooks and trainings may require updating to address these issues. While the proposed regulations may not change Pennsylvania law dramatically, the specificity of the definitions provides a good template for training and employer policies.
Patricia Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. Patricia Collins can be contacted at 215.230.7500 ext. 126.