Whence came this enlightened law?

November 26, 2012
By: Charles Lamberton

Though employment discrimination is most commonly understood as a field defined entirely by federal law, in fact it is not. States and localities play a pivotal role in the fight against workplace discrimination. Their laws often afford stronger protections and more substantial remedies than federal law. Therefore, when we represent clients or sue employers outside of Pittsburgh, one of the first things do is check local law. Our work recently brought us back to one of our all-time favorite local law – the Philadelphia Fair Practices Ordinance. It is a truly remarkable piece of legislation.

The Philadelphia Fair Practices Ordinance, as amended (the Ordinance), applies to employers, defined broadly to mean “any person who does business in the City of Philadelphia who employs one or more employees exclusive of parents, spouse, or children.” Amendments enacted in 2011 expand the anti-discrimination provisions of the existing ordinance by, among other things, (1) adding three new protected classes—genetic information, domestic or sexual violence victim status, and familial status; (2) strengthening the provisions concerning prohibited practices and adding to the types of employment practices considered unlawful.

As amended, the Ordinance prohibits employment discrimination for both actual and perceived membership in a protected class, including the expanded classes above and those classes already protected, which include race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, and marital status.  The Ordinance provides broad definitions of the newly protected classes. “Familial status” includes individuals who either are now or are becoming a provider of care or support to a family member, defined broadly to include the individual’s spouse, life partner, parents, grandparents, siblings, or in-laws and children, grandchildren, nieces or nephews, including through adoption or other dependent or custodial relationships. The familial status protection also applies to any person who is pregnant.

Discrimination on the basis of genetic information is now defined to include discrimination on the basis of information about an individual’s genetic tests, the genetic tests of the individual’s family members, and the manifestation of a disease or disorder in the individual’s family members. A genetic test is defined as an analysis of DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.  The Ordinance expands the protection of domestic or sexual violence victim status to the discrimination context. Individuals subjected to acts of domestic violence, sexual assault, or stalking now have protection beyond the requirement that employers provide them with the leave rights to which they are already entitled under the Entitlement to Leave Due to Domestic Violence, Sexual Assault, or Stalking, Phila. Code § 9-3200 et seq.

As amended, the Ordinance prohibits an employer from engaging in the unlawful employment practices such as denying or interfering with the employment opportunities of an individual based on their protected status. and incorporates any other acts or practices made unlawful under federal or Pennsylvania anti-discrimination laws. However, the amended Ordinance includes stronger anti-discrimination provisions prohibiting any person from harassing, threatening, harming, damaging, or otherwise penalizing, retaliating, or discriminating against any other person because that person complied with the Ordinance; exercised rights under the Ordinance; enjoyed the benefits of the Ordinance; or made a charge, testified, or assisted with any investigation, proceeding, or hearing concerning a violation of the Ordinance. It also adds the requirement to post and exhibit in any place of business where employment is carried on any fair practices notice prepared for posting and made available by the PCHR. A failure to comply with this requirement is also considered an unlawful employment practice under the amended Ordinance.

The PCHR and complainants have greater enforcement rights based on the amended Ordinance. The PCHR may issue an order directing a respondent found to have engaged in an unlawful employment practice to take affirmative action to redress the harms suffered by the complainant, and may take any or all of the following actions: (1) issuing a cease-and-desist order; (2) ordering injunctive relief or equitable relief such as hiring or reinstating the complainant or upgrading the complainant’s employment, with or without back pay; (3) ordering payment of compensatory damages; (4) ordering payment of punitive damages, which are now increased from the maximum allowance of $300 to $2,000 per violation; (5) and ordering payment of reasonable attorneys fees and hearing costs. Respondents may seek judicial review of such orders by appealing to any court with competent jurisdiction within 30 days.

The Ordinance as amended streamlines the procedures for the filing and investigation of complaints before the PCHR, and includes a new provision requiring respondents to file answers to complaints brought against them. Complaints must still be filed within 300 days after the occurrence of the alleged unlawful practice. However, filing such a complaint does not foreclose that person’s right of action in state court. Instead, if within one year after the filing of a complaint with the PCHR, the agency either dismisses the complaint or has not entered into an agreement to which the complainant is a party, the PCHR must notify the complainant. The complainant may then file an action in the Court of Common Pleas of Philadelphia County and may seek relief in the form of compensatory damages, punitive damages, reasonable attorneys’ fees, and costs or other equitable relief. There is no cap designated for the amount of damages that may be awarded to a complainant in a civil action.  Recoverable damages include compensatory damages, punitive damages, attorney fees, court costs, and “such other relief, including injunctive relief, as the court may deem appropriate.”  This language marks a substantial expansion of the private remedies available prior to the 2011 amendments, which were then limited to back pay and other actual damages, punitive damages of $300 per violation, attorney fees and other relief, including the injunction.