On December 8, 2022, Pennsylvania's Independent Regulatory Review Commission approved amendments to the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Educational Opportunities Act regulations to add a subchapter providing new definitions of race, gender and religious creed under the acts, 16 Pa. Code, Chapter 41, Subchapter D, § 41.201 —41.20. Of particular importance, the amended regulations expand the definition of race to include hairstyles associated with race and the definition of sex to include sexual orientation—protected categories that were not previously covered under express provisions of Pennsylvania law.
Under the new regulations, the term sex, "when used in connection with the unlawful discriminatory practices proscribed by the PHRA," includes pregnancy, childbirth and related medical conditions; breastfeeding; sex assigned at birth; gender identity or gender expression; affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality, and asexuality; and "differences of sex development, variations of sex characteristics, or other intersex characteristics."
The term race includes ancestry, national origin or ethnic characteristics; interracial marriage or association; Hispanic national origin or ancestry; "traits historically associated with race, including, but not limited to: (i) Hair texture; (ii) Protective hairstyles, such as braids, locks, and twists"; and any other national origin or ancestry "as specified by a complainant in a complaint."
Religious creed includes all aspects of religious observance and practice, as well as belief.
The new regulations will become effective within 60 days of publication in the Pennsylvania Bulletin.
Pennsylvania employers should consider reviewing their discrimination and harassment policies and training programs in light of these expanded definitions which, the amended regulations assert, "ensure[] that all complaints filed with the Pennsylvania Human Relations Commission are investigated consistent with the rules outlined herein."
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