WHEREAS, amendments are necessary to make the rights and remedies for victims of employment discrimination under the PHRA equivalent to what is currently available under the PHRA to victims of housing discrimination;
WHEREAS, the Philadelphia Bar Association has a long tradition of championing the rights of the disadvantaged and advocating for civil rights. In May 1991, the Board of Governors resolved to support the passage of the Civil Rights Act of 1991;
WHEREAS, the Civil Rights Act of 1991 was signed into law by President Bush on November 21, 1991, after it was passed by an overwhelming majority of Congress. The Act provided new procedural rights and remedies to persons alleging federal civil rights violations;
WHEREAS, the Americans With Disabilities Act was passed on July 26, 1990 providing important civil rights protection for persons with disabilities in removing architectural barriers, providing program accessibility and prohibiting discrimination in the employment context. The effective date of the Act varied by provision but the major provisions were phased in beginning in 1992;
WHEREAS, many of the provisions available to people alleging violations of civil rights under the new federal civil rights laws are not available to people alleging violations of the same rights under the state civil rights law, the PHRA. Additionally, filing deadlines under the federal and state laws are different causing considerable administrative confusion, delay and conflicts;
WHEREAS, the Fair Housing Act of 1968 was amended effective on May 12, 1989 to provide additional protected classes, expanded remedies and improved enforcement procedures for persons alleging violations of federal fair housing laws;
WHEREAS, the PHRA was amended effective on December 31, 1991 to make its provisions for housing discrimination victims substantially equivalent to the Federal Fair Housing Act as amended;
WHEREAS, the PHRA now provides more expansive relief and rights to victims of discrimination in housing than to victims of analogous discrimination occurring in the employment context;
WHEREAS, legislation will be introduced to amend the PHRA to make the state civil rights law consistent with federal civil rights law and to make the relief and rights for victims of employment discrimination equivalent to what is available currently under the PHRA to victims of housing discrimination;
NOW, THEREFORE, BE IT RESOLVED that the Board of Governors of the Philadelphia Bar Association supports amending the Pennsylvania Human Relations Act to make it consistent with the provision of federal civil rights laws and to make the employment provisions of the Pennsylvania Human Relations Act consistent with its housing provisions and authorizes the Chancellor to take all necessary and reasonable steps to communicate the Association's position to the Pennsylvania General Assembly.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: June 24, 1993
SUMMARY OF PROPOSED CHANGES TO PHRA
- Reduce the time that a complaint must be before the PHRC before a case can be filed in court from 1 year to 6 months or in cases of age discrimination from 1 year to 60 days. This basically brings the state law in line with federal law.
- Extend the filing time for complaints from 180 to 300 days. Again, this brings the state law in line with what is permitted under federal law.
- Clarify that jury trials are available. Jury trials under the PHRA are permitted in federal court but it is unclear in state court. Again, this would make the PHRA more consistent with federal civil rights law.
- Allow for the recovery of actual damages including damages caused by embarrassment and humiliation at the Commission level. Also allow for civil penalties against discriminators at the Commission level in the amount of $l0,000 for first time violators, $25.000 for second time violators and $50,000 for recidivists. These damages are already permitted under the PHRA for victims of housing discrimination. This would make employment and housing discrimination penalties consistent.
- Permit attorneys' fees to successful complainants at the Administrative level. These are available already to successful housing discrimination complainants at the administrative level.
- In cases of sexual harassment, preclude evidence of complainant's nest sexual history (except with respondent) to show welcomeness or absence of injury. California has a similar provision for sexual harassment cases. This is modeled somewhat on what is permissible evidence under federal and Pennsylvania law in rape cases.
- Have a clear effective date of the statute so that it covers pending cases and the retroactivity issue does not rear its ugly head.
Technical or Minor Procedural Chances
- Delete language saying that employers cannot discriminate against a person who is the best able and most competent to perform the services required. Discrimination should be prohibited against anyone. The problem with the current language is, for example, that sexual harassment is permissible as long as the person is not the most able and competent employee. This change will make the PHRA consistent with federal law. (§955)
- Add section requiring that the answer and accompanying exhibits Ret forwarded by the Commission to the complainant within ten days of their receipt by the Commission. As it is now, the respondent knows the substance of the complainant's allegations by virtue of receiving the complaint but the complainant does not know the substance of the respondent's defense. (§959)
- Require that all documents submitted by either party be shared with the opposing party. Currently, the parties are not informed of the documents submitted by the opposing side and, thus, are not able to respond to provide the factfinder with relevant rebuttal evidence. (§958)
- Empower the commission to compel answers to interrogatories. Some parties to the PHRC proceedings do not view them seriously and simply refuse to participate fully or cooperatively. (§957)
- At the conclusion of the Commission's involvement with a complaint, permit either party to have access to the Commission's file within 30 days of such a request. This would enable a complainant to evaluate more knowledgeably whether or not to proceed to litigation based on information uncovered in the PHRC investigation. Currently, the complainant must decide whether to file in court without the benefit of knowing what is in the PHRC file and can only subpoena the file after going into court.