The Pennsylvania Human Relations Commission is set to expand safeguards for discrimination. As my colleagues, Alexis M. Wheeler and Gretchen E. Moore touched on within their Don’t Look the Other Way – Workplace Investigations Part 2 blog post, these safeguards will greatly expand the formal definition for the terms “sex,” “race,” and “religious creed.” So, you must be asking, “What does this mean for my business?” For starters, does your company’s policy comply with these new regulations?

On December 8, 2022, the Independent Regulatory Review Commission (IRCC) approved regulations originally submitted for review by the Pennsylvania Human Relations Commission (PHRC). The new regulations will apply to Pennsylvania employers with four or more employees and add a subchapter under 16 Pa. Code, Chapter 41, Subchapter D, § 41.201—41.20. As such, employers must be mindful of the following terms under these new regulations.

Under the new regulations, the term sex 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.” It is important to recognize that this definition includes being perceived, presumed, or identified by others as having such an affectional or sexual orientation. Under the regulations, 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”. Lastly, concerning religious creed discrimination, the regulations provide a comprehensive definition for the term “religious creed” to include all aspects of religious observance and practice, as well as belief.

Notably, the regulations are not yet final. The new regulations will become effective within 60 days of publication in the Pennsylvania Bulletin. As such, the Employment Group of Strassburger McKenna Gutnick & Gefsky is actively tracking this ongoing matter. However, employers should be aware that all complaints filed with the Pennsylvania Human Relations Commission are investigated consistent with the above mentioned rules. In other words, the rule change codifies the way that the PHRC has been addressing these issues.