The definitions of "sex," race" and "religious creed" have been defined expansively by new regulations issued under the Pennsylvania Human Relations Act (PHRA) on December 7, 2022, by the Independent Regulatory Review Commission. Although the Pennsylvania Human Relations Commission (PHRC) has taken the position that the robust definitions simply codify existing law under the PHRA, the new regulations will not become effective until after a legislative review period and publication in the Pennsylvania Bulletin.

Employers are well advised to assume the PHRC will apply the broad definitions discussed below when investigating and enforcing the PHRA prior to their effective date and that these regulations eventually will be set in the Pennsylvania Code.

Definition of "Sex"

Under the new regulation, the protected class "sex" is defined to include, but is not limited to:

  1. Pregnancy, including medical conditions related to pregnancy.
  2. Childbirth, including medical conditions related to childbirth.
  3. Breastfeeding, including medical conditions related to breastfeeding.
  4. Sex assigned at birth, including, but not limited to, male, female or intersex.
  5. A person's gender, including a person's gender identity or gender expression.
  6. Affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality and asexuality.
  7. Differences of sex development, variations of sex characteristics or other intersex characteristics.

Many of the above examples are further defined by other definitions in the new regulations.

Definition of "Race"

Under the new regulations, the protected class "race" is defined to include, but is not limited to:

  1. Ancestry, national origin or ethnic characteristics.
  2. Interracial marriage or association.
  3. Traits historically associated with race, including, but not limited to:
    1. Hair texture and
    2. Protective hairstyles, such as braids, locks and twists.
  4. Persons of Hispanic national origin or ancestry, including, but not limited to, persons of Mexican, Puerto Rican, Central or South American or other Spanish origin or culture.
  5. Persons of any other national origin or ancestry.

Many of the above examples are further defined by other definitions in the new regulations.

Definition of "Religious Creed"

Under the new regulations, the protected class "religious creed" is defined as follows:

  1. The term includes all aspects of religious observance, practice or belief.
  2. Religious beliefs include moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. The fact that no group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of a complainant.

What This Means for Pennsylvania Employers

Employers in Pennsylvania will need to decide which of the subclasses of sex, race and religious creed to include in their policies prohibiting discrimination and harassment, and management training programs on discrimination and harassment. Most importantly, employers will need to consider these expansive definitions in reviewing their employment practices to maximize legal compliance and minimize legal risk.

In particular, managers will need specific guidance on how to address these issues as they may arise in the context of diversity, equity and inclusion. Otherwise, discussions about diversity to increase equity and inclusion could end up as evidence in a complaint in which the characteristic was discussed and is alleged to be the basis for an adverse employment action.

For More Information

If you have any questions about this Alert, please contact Jonathan A. Segal, any of the attorneys in our Employment, Labor, Benefits and Immigration or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.