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Client Alert: PA Employment Discrimination Changes

2023 marks a new year and the expansion of the scope of protected classes that will be covered under Pennsylvania anti-discrimination laws. On December 8, 2022, the Independent Regulatory Review Commission approved regulations proposed by the PA Human Relations Commission to expand and clarify classifications of the terms “sex”, “race” and “religious creed” as they pertain to protected classes under the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Educational Opportunities Act (PFEOA). Most notably, the new definitions clarify coverage of those in the LGBTQ+ community and prohibit discrimination based on hairstyle and hair texture.  Although federal laws protecting these subclasses have been in place for some time, they have not been specifically referenced at the state level until now. 

Employers, as well as educators, housing providers, and those subject to public accommodations requirements need to be aware of the changes that will take effect this year. Lawyers and clients should presume that the PHRC will take these expansions into consideration when investigating claims of discrimination, even though they technically do not go into effect until legislators from both the House and Senate have the opportunity to review them and they are published in the Pennsylvania Bulletin.
 
Under the new regulation, the protected class “sex” includes, but is not limited to:

1. Pregnancy, including medical conditions related to pregnancy,
2. Childbirth, including medical conditions related to childbirth,
3. Breastfeeding, including medical conditions related to breastfeeding,
4. Sex assigned at birth, including, but not limited to, male, female and intersex,
5. A person’s gender, including gender identity and gender expression,
6. Affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality and asexuality, and/or
7. Differences of sex development, variations of sex characteristics or other intersex characteristics.

The protected class “race” is defined to include, but is not limited to:

1. Ancestry, national origin, or ethnic characteristics,
2. Interracial marriage or association,
3. Traits historically associated with race, including, but not limited to, hair textures and protective hairstyles (e.g., braids, locks, and twists),
4. Persons of Hispanic national origin or ancestry, including, but not limited to, Mexican, Puerto Rican, Central or South American, and Spanish origin or culture, and/or
5. Persons of any other national ancestry or origin.

The protected class “religious creed” includes as follows:

1. All aspects of religious observance, practice and belief.
2. Religious beliefs 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.

The regulations will be codified as 16 Pa. Code Chapter 41.201-41.207.  Employers may need to update anti-discrimination and anti-harassment policies to reflect the changes.  Employers likewise should consider revisiting management training programs and employment practices to ensure that all employees are aware of the expanded subclasses and the implications of violating policies that pertain to them.

For more information, please contact Tina A. Roeschenthaler at 412-567-7557 or troeschenthaler@wtplaw.com.  

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The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.