Lehigh County Human Relations Ordinance becomes effective June 1

The Lehigh County Human Relations Ordinance becomes effective June 1, 2024, which prohibits discrimination in employment, housing, education, healthcare, and public accommodations. The Lehigh County Human Relations Commission, a group of 7 to 13 volunteers, will enforce the Ordinance.

Non-Discrimination in Employment

The Ordinance applies to employers with at least one employee and extends its coverage to employees and independent contractors. However, there are minor exceptions for applicability, specifically:

1) Certain non-profit associations that necessitate adherence to a mission or where membership is a bona fide occupational qualification.

2) Employees employed by their parents, spouse, or child.

The Ordinance prohibits discrimination based on protected characteristics and prohibits certain inquiries related to criminal records, as discussed below.

Protected Characteristics

The Ordinance prohibits employers from discriminating against prospective and current employees based on their actual or perceived status in the following protected classes: race, ethnicity, color, religion, creed, national origin or citizenship status, ancestry, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), gender identity, gender expression, sexual orientation, genetic information, marital status, familial status, earning a GED rather than high school diploma, physical or mental disability (including prior disability), relationship or association with a disabled person, source of income, age, height, weight, veteran status, use of guide or support animals and/or mechanical aids, or domestic or sexual violence victim status.

Notably, a claim for age discrimination under the Ordinance applies to those who are 35 years of age or older, compared to the 40-year age minimum for age discrimination in the federal Age Discrimination in Employment Act and Pennsylvania Human Relations Act.

The Ordinance also specifies that “Long COVID” is within the definition of physical impairment concerning disability claims.

Criminal Record Prohibitions

The Ordinance places restrictions on employers concerning criminal records. First, employers are prohibited from requiring job applicants to disclose their criminal convictions; this information may only be requested after an initial interview. Second, employers can use background checks and prior history to assess a candidate’s suitability for employment. Third,

employers are permitted to consider only those convictions related to an applicant’s suitability for employment.

Under existing Pennsylvania law, if an employer denies or withdraws the offer of employment due, in whole or in part, to the applicant’s criminal record, the employer must provide a written notice providing the explanation. Failure to provide this written notice constitutes a violation of both the existing Pennsylvania law and the Ordinance.

Current Salary Information

Under the Ordinance, employers are prohibited from asking a job applicant about the applicant’s current or past salary.

Non-Retaliation in Employment

The Ordinance prohibits employers from retaliating against anyone who files a complaint alleging a violation of the Ordinance, regardless of the complaint’s merit.

Procedural Information and Remedies

Commission

Complaints alleging violations of the Ordinance must be filed within 180 days of the most recent alleged acts of discrimination. The complaint should be submitted to the Lehigh County Office of Human Resources or on the Commission’s website.

Within 30 days of receiving the complaint, the Commission will advise the complainant if there is no jurisdiction, or acknowledge receipt of the complaint. The Ordinance requires that the complainant is informed of the right to file with the Pennsylvania Human Relations Commission and/or the Equal Employment Opportunity Commission. Filing the complaint with the Commission does not trigger dual filing with the aforementioned agencies.

Respondents must answer the complaint within 60 days of the mailing of the complaint. The Commission investigates the complaint, answer, and other information related to the case. The investigation may lead to a determination of no unlawful practice or probable cause of an unlawful practice. If probable cause is found, the parties may proceed to mediation or a public hearing.

At the hearing, the Commission is not bound by the federal or Pennsylvania rules of evidence. If discrimination is found following the evidence presented at the hearing, the Commission has the authority to order any of the remedies available under the Pennsylvania Human Relations Act or direct the employer to change its practices, provide restitution, and, in egregious circumstances, pay a fine of up to $500.

Court of Common Pleas

An individual may file a complaint in the Lehigh County Court of Common Pleas within one year of the Commission dismissing the complaint. If no such notice has been received, the complaint may be filed after one year has passed since its filing with the Commission.

Insight on Implementation

The Ordinance and Commission were discussed during the May 6, 2024, Human Relations Advisory Council meeting. The Council noted that they had 16 applicants for the Commission and that six of them were members of the Council. When asked whether there were criteria for selecting the members of the Commission, Council Member Frank Kane explained that “the hope is for a diverse group across all the areas where a person might be discriminated against such as age, race, sexual preference, ethnicity, and national origin etc. and if it appears not enough divergent groups are represented other people might also be encouraged to apply.”

The Council also noted that law firms have addressed this Ordinance. Vice-Chair Council Member Liz Bradbury suggested that businesses should contact the Commission rather than counsel.

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