Pennsylvania is using its regulatory process to expand protections against discrimination and retaliation in employment, housing, public accommodations, and education in 2023.
On December 8, 2022, the Independent Regulatory Review Commission approved a regulation proposed by the Pennsylvania Human Relations Commission (PHRC) in March of 2022 that provides comprehensive definitions for the terms “sex,” “religious creed,” and “race” as they are used in the Pennsylvania Human Relations Act (PHRA) and other Pennsylvania anti-discrimination statutes. The PHRA prohibits discrimination in employment, housing, public accommodations, education, and commercial property “because of” sex, religious creed, and race, among other protected classes. However, the terms sex, religious creed, and race are not defined by the decades-old statute.
The PHRC’s position is that the robust definitions simply codify existing law under the PHRA. However, the new regulation will not become effective until after a legislative review period and publication in the Pennsylvania Bulletin. Unless state lawmakers from both the House and Senate vote in their 2023 session to override the commission (which is unlikely), the regulation will be effective.
How the Definitions of Sex, Race, and Religious Creed are Redefined
Under the new regulation, the following definitions will become effective:
“Sex” is defined to include:
- Pregnancy, including medical conditions related to pregnancy.
- Childbirth, including medical conditions related to childbirth.
- Breastfeeding, including medical conditions related to breastfeeding.
- Sex assigned at birth, including, but not limited to, male, female or intersex.
- A person’s gender, including a person’s gender identity or gender expression.
- Affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality and asexuality.
- Differences of sex development, variations of sex characteristics or other intersex characteristics.
“Race” is defined to include:
- Ancestry, national origin, or ethnic characteristics.
- Interracial marriage or association.
- Traits historically associated with race, including, but not limited to, hair texture, and protective hairstyles (e.g., braids, locks, and twists).
- Persons of Hispanic national origin or ancestry, including, but not limited to, persons of Mexican, Puerto Rican, Central or South American, and Spanish origin or culture.
- Persons of any other national origin or ancestry.
“Religious creed” is defined to include all aspects of religious observance, practice or belief.
Religious beliefs are defined to include moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. The fact that no group espouses such beliefs or the fact that the religious group – to which the individual professes to belong may not accept such belief – will not determine whether the belief is a religious belief of a complainant.
Why Is This Regulation Being Proposed?
According to the PHRC, the regulation is being proposed because neither the PHRA nor the Pennsylvania Fair Educational Opportunities Act (PFEOA), the statute that prohibits discrimination in education, define the terms race, religious creed, or sex. They are also consistent with the current interpretations of these terms by many federal and state courts across the country.
What This Means for Pennsylvania Employers
All businesses that employ four or more individuals or independent contractors in the Commonwealth of Pennsylvania are covered by the PHRA and the proposed regulation.
In addition to the LGBTQ protections, the Pennsylvania rule extends the state’s anti-bias law to cover traits historically associated with race, including traditionally Black hairstyles and textures such as braids, locks, and twists. The state agency is following the lead of 18 states plus a few dozen U.S. cities and counties that have specifically banned race-related hair discrimination within the last three years.
Pennsylvania employers should evaluate whether to highlight specific subclasses of sex, race and religious creed to include in their EEO policies, anti-discrimination policies, anti-harassment policies, anti-retaliation policies. Likewise, Pennsylvania employers should review their training programs for management, workplace conduct, and diversity, equity and inclusion (DEI) to include additional specifics on the subclasses of sex, race and religious creed to the extent they do not already. Most importantly, employers should consider these expansive definitions in reviewing their overall employment practices to maximize legal compliance and minimize legal risk.