Overview for Employers: The Philadelphia Fair Practices Act and Issues to Watch

Craig J. Smith

Employers located within the City of Philadelphia and those who do business in the City through employees located there, need to be mindful of the provisions of the Philadelphia Fair Practices Act (“FPO”), Chapter 9-1100 of the Philadelphia Code.  While in some respects the FPO is similar to the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951, et seq., in many ways the FPO goes well beyond the PHRA in designating protected categories, in identifying prohibited practices, and especially in its potential enforcement mechanisms.

By its provisions, the FPO applies to “employers” defined as “[a]ny person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse, Life Partner or children, including any public agency or authority; any agency, authority or other instrumentality of the Commonwealth; and the City, its departments, boards and commissions.”  §9-1102(h)

Section 9-1102(e) of the FPO defines “discrimination” as: “Any direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person on the basis of actual or perceived race, ethnicity, color, sex (including pregnancy, childbirth, or a related medical condition), sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information or domestic or sexual violence victim status, or other act or practice made unlawful under this Chapter or under the nondiscrimination laws of the United States or the Commonwealth of Pennsylvania.”

The FPO thus sweeps within its scope all of the prohibited practices of various federal anti-discrimination laws as well as those practices prohibited by the PHRA.

In addition to the protected categories familiar to those who work with the PHRA, Title VII, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”), the FPO lists sexual orientation, gender identity, source of income, and domestic or sexual violence victim status (source of income is a protected category for housing and real property issues, not for employment purposes).

Employers also should take a close look at the FPO’s list of unlawful employment practices, as several of the practices declared unlawful appear nowhere else in federal or Pennsylvania state anti-discrimination law. Section 9-1103 of the FPO makes the following employment practices unlawful:

–           to deny or interfere with the employment opportunities of an individual based on the categories listed above, including,

–           to refuse to hire, discharge, or otherwise discriminate against any individual, with respect to tenure, promotions, terms, conditions or privileges of employment or with respect to any matter directly or indirectly related to employment;

–           for any employment agency to fail or refuse to classify properly or refer for employment or otherwise discriminate against any individual;

–           for any labor organization to discriminate against any individual or to limit, segregate or classify its membership in any way which would deprive such individual of employment opportunities, limit his or her employment opportunities or otherwise adversely affect his or her status as an employee or as an applicant for employment or adversely affect his or her wages, hours or conditions of employment;

–           for any employer, employment agency or labor organization to establish, announce or follow a formal or informal policy of denying or limiting, through a quota system or otherwise, the employment or membership opportunities of any individual or group;

–           for any employer, employment agency or labor organization prior to employment or admission to membership to cause to be printed, published or circulated any notice or advertisement relating to employment or membership indicating any preference, limitation, or specification constituting discrimination under this Chapter;

–           for any employer, employment agency or labor organization to violate any provision of Chapter 9-3200 of this Code, entitled “Entitlement to Leave Due to Domestic Violence, Sexual Assault, or Stalking;”

–           for any person to harass, threaten, harm, damage, or otherwise penalize, retaliate or discriminate in any manner against any person because he, she or it has complied with the provisions of this Chapter, exercised his, her or its rights under this Chapter, enjoyed the benefits of this Chapter, or made a charge, testified or assisted in any manner in any investigation, proceeding or hearing hereunder;

–           for any person to aid, abet, incite, induce, compel or coerce the doing of any unlawful employment practice or to obstruct or prevent any person from complying with the provisions of this Section or any order issued hereunder or to attempt directly or indirectly to commit any act declared by this Section to be an unlawful employment practice;

–           for any person subject to this Section to fail to post and exhibit prominently, in any place of business where employment is carried on, any fair practices notice prepared and made available by the Commission, which the Commission has designated for posting;

–           for any employer to fail to permit employees to dress consistently in accordance with their gender identity;

–           for any employer to fail, upon request of an individual to change that individual’s name or gender on any forms or records under the control of that employer, to make such changes to the extent permitted by law;

–           for any employer to fail to provide reasonable accommodations to the needs of an employee for her pregnancy, childbirth, or a related medical condition, as required by Section 9-1128;

–           for any employer to fail to reasonably accommodate an individual’s need to express breast milk – reasonable accommodations include providing unpaid break time or allowing an employee to use paid break, mealtime, or both, to express milk and providing a private, sanitary space that is not a bathroom where an employee can express breast milk, so long as these requirements do not impose an undue hardship (as defined in §9-1128(2)) on an employer.

Section 9-1128 provides additionally that it is an unlawful discriminatory employment practice for an employer to fail to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition, provided (i) the employee requests such accommodations and (ii) such accommodations will not cause an undue hardship to the employer.

Reasonable accommodation under Section 9-1128 means an accommodation that can be made by an employer in the workplace that will allow the employee to perform the essential functions of the job.  Reasonable accommodations include, but are not limited to, restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

Under Section 9-1128, the employer has the burden of proving undue hardship, considering such factors as nature and cost of accommodations; the overall financial resources of the employer’s facility, the number of persons employed at the facility, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type and location of its facilities; and the type of operation or operations of the employer, including the composition, structure and functions of the workforce, the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the employer.

It is an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodations, satisfy the requisites of the job.

Yet another unlawful employment practice is set forth in §9-1130, which states, subject to listed exceptions, it shall be an unlawful discriminatory practice for an employer to procure, to seek a person’s cooperation or consent to procure, or to use credit information regarding an employee or applicant in connection with hiring, discharge, tenure, promotion, discipline or consideration of any other term, condition or privilege of employment with respect to such employee or applicant.

Of note, currently on hold pending resolution of the proceedings in Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, et al., No. 2:17-cv-01548-MSG in the United States District Court for the Eastern District of Pennsylvania, is a new provision of the FPO dealing with “wage equity” which would make it unlawful for an employer to inquire about a prospective employee’s wage history or to rely on the wage history of a prospective employee in determining the wage for such individual unless the applicant knowingly and willingly disclosed that wage history.  The Chamber has challenged this provision as a violation of the First Amendment, as a violation of the Due Process Clause of the Fourteenth Amendment due to the exposure of employers to severe penalties, and the question of whether the FPO is intended to apply to employers outside the City or even State limits provided such employers do “business in the City.”  As of this writing, the parties have submitted briefs on the Chamber’s motion for a preliminary injunction and the City’s request for an evidentiary hearing.

Section 9-1105 provides that the Commission may order remedies including but not limited to cease and desist orders, injunctive or other equitable relief including hiring, reinstating or upgrading, with or without back pay, admitting or restoring membership in a labor organization, admission to a guidance, apprentice-training or retraining program, payment of compensatory damages, payment of punitive damages (not to exceed $2000 per violation), payment of reasonable attorneys’ fees and payment of hearing costs as reimbursement for expenses incurred by the Commission.

While these remedies are consistent with existing state and federal law, the FPO’s additional penalty provisions, some of which are cited in the Chamber’s litigation, go far beyond anything in the arsenal of the EEOC or the Pennsylvania Human Relations Commission.

Section 9-1121(1) provides for fines of up to $2000 for each violation of any order of the Commission, or any provision of the FPO, including any person who shall willfully resist, prevent, impede or interfere with the Commission, its members, agents or agencies in the performance of duties.

“Any person who violates, on more than one occasion, any order of the Commission or any provision of this Chapter, or who, on more than one occasion, willfully resists, prevents, impedes or interferes with the Commission, its members, agents or agencies in the performance of duties pursuant to this Chapter, shall be guilty of a separate offense of repeat violation, and for each such repeat violation shall be subject to a fine of not more than two thousand (2,000) dollars, or imprisonment for not more than ninety (90) days, or both.  A person shall be guilty of a repeat violation regardless of whether the second or subsequent violation occurs before or after a judicial finding of a first or previous violation.  Each violation, after the first, shall constitute a separate repeat violation offense.” §9-1121(2) [Emphasis added]

An amendment to the FPO, signed by the Mayor on May 17, 2017, to be effective immediately, states that in addition to the other remedies provided in the Law, “the Commission may, upon a finding that a respondent has engaged in severe or repeated violations without effective efforts to remediate the violations, order that the respondent cease its business operations in the City for a specified period of time.” §9-1118(3) [Emphasis added]

This article does not discuss other provisions of the Philadelphia Code with which employers need to be familiar such as Chapter 9-4100, Philadelphia’s paid sick leave law, and Chapter 9-3000, Fair Criminal Record Screening Standards (“Ban the Box” ordinance governing criminal record checks in employment hiring decisions).

In sum, several of the prohibited employment activities listed in the FPO have no federal or state corollaries and therefore limited case law exists to guide employers.  This is especially concerning, since employers who violate the FPO potentially face not only administrative action, litigation and fines, but even shuttering of their businesses and  potential jail time for repeat violations.  To date, there are no definitions for what constitutes “severe or repeated violations” or what constitutes an ineffective effort to remediate the violation, nor are there any specified limits on the period of time the Commission might lawfully shut down a business.  Given all of these concerns, litigation under the FPO bears close watching.