On June 17, the Pennsylvania Human Relations Commission (“PHRC”) passed new regulations under the Pennsylvania Human Relations Act (“PHRA”) that will go into effect on Aug. 16.
The PHRA prohibits discrimination in employment on the basis of race, color, religious creed, ancestry, age, sex, national origin, or disability. The previous regulations published by the PHRC defined only ‘pregnancy’ and ‘disability due to childbirth,’ leaving the definitions of the other protected classes up to PHRC guidance and Pennsylvania caselaw.
Under the new regulations, the PHRC now includes definitions for ‘race,’ ‘sex,’ and ‘religious creed.’ For the most part, the new definitions track federal and Pennsylvania caselaw, and provide some clarity on areas that were previously ambiguous. Though the changes may seem small, they are likely to have a large impact.
Sex Discrimination
The changes to the definition of ‘sex’ under the PHRA bring the term in line with how courts have interpreted ‘sex’ under Title VII and Title IX. The regulations affirm that ‘sex’ includes pregnancy; sex assigned at birth; gender, including a person’s gender identity or expression; affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality, and asexuality; and differences of sex development, variations of sex characteristics, or other intersex characteristics. Though Pennsylvania courts have previously considered these traits to fall under the definition of ‘sex,’ the new regulations embed these rights directly within the PHRA and affirm the protections offered to LGBTQ+ individuals.
Religious Creed Discrimination
Noting some ambiguity with respect to the definition of religious creed under the PHRA, the PHRC added a definition of religious creed. Drawing from EEOC interpretations, the PHRC clarified that ‘religious creed discrimination’ means the failure to provide reasonable accommodations for all religious beliefs, practices, or observances.
Race Discrimination
Perhaps the most significant changes in the regulations relate to race discrimination.
The new regulations define ‘race’ to include ancestry, national origin, or ethnic characteristics; interracial marriage or association; traits associated with race; Hispanic ancestry, national origin, or other ethnic characteristics, including but not limited to persons of Mexican, Puerto Rican, Central or South American, or other Spanish origin or culture; and persons of any other national origin or ancestry.
Importantly, ‘traits associated with race’ is further defined to include hair texture and protective hairstyles such as braids, locks, and twists. For all practical purposes, this definition means Pennsylvania employees are now protected by a CROWN act. CROWN acts (Creating a Respectful and Open World for Natural Hair) are laws that address the discrimination experienced by individuals who wear hairstyles that are typically associated with race, such as afros, locs, bantu knots, and braids.
Currently, 22 states and approximately 50 municipalities, including Philadelphia and Pittsburgh, have laws that prohibit hairstyle discrimination. CROWN acts are typically passed as independent legislation supplementing anti-discrimination laws, including the CROWN Act pending in the Pennsylvania legislature. However, it seems the new regulations offer these same protections under the PHRA’s definition of ‘race.’
What’s the takeaway?
Because many aspects of the definitions were already affirmed by Pennsylvania case law, some employers may not view this as much of a change. However, employers should take the opportunity to review their handbooks and Equal Employment Opportunity (“EEO”) policies and programs to ensure compliance with the new regulations. Employers should also review any policies concerning appearance in the workplace to ensure the policy is compliant with the PHRA’s definitions of race, sex, and religious creed. Employers should also make sure employees are aware of their EEO policies, including anti-discrimination and retaliation policies, and the process for reporting complaints.
