Confusion is still widespread over the particulars of Luzerne County’s new anti-discrimination ordinance.
The 23-page ordinance doesn’t just apply to county government itself, creating a challenge for the public to decipher how it could impact them.
County Council had general discussions and accepted public comment, but it never publicly hashed out the intricacies of each item included in the ordinance in any committee meetings to provide a clear understanding. That lack of advance blow-by-blow analysis has prompted those for and against to put out sometimes conflicting interpretations of what it all means.
A firm grasp is essential because the ordinance is set to take effect 90 days after a council majority’s June 9 passage vote. A group of citizens is trying to obtain at least 11,615 voter signatures needed to get an ordinance repeal question on the ballot.
In an attempt to clarify, here is a guide of some of the key points based on wording in the ordinance, which is posted in full under council’s section at luzernecounty.org:
What is banned
Any exclusion, denial, intimidation, coercion, difference, or segregation in treatment because of an individual’s membership in a protected class in the following areas:
• Hiring, referring for hire, promoting, and training, including apprenticeship programs
• Membership in employee or labor organizations
• The advertisement, sale, lease, rental, financing, or zoning of housing
• The provision of healthcare
• Education
• Rendering service in places of public accommodation
• Relating to or based on an individual’s natural hair or protected hairstyle, where such hair or hairstyle does not pose a legitimate health or safety risk or otherwise interfere with the performance of essential job functions
Protected classes
Here are the protected classes listed in the ordinance, along with any specific definitions or elaborations if they are included in the ordinance:
• Actual or perceived race — includes traits historically associated with an individual’s race, such as hair texture and protected hairstyles
• Religion/creed — includes all aspects of religious observance and practice, including closely held beliefs, differing sects of religious creeds, and head coverings and hairstyles historically associated with religious practice
An exception notes a person or religious entity cannot be forced to engage in conduct that “constitutes a substantial burden on the free exercise of religion” without “compelling justification” under the Religious Freedom Protection Act. Religious entities are defined as churches or other religious orders or institutions that qualify for tax exemption under the Internal Revenue Code.
• National origin or citizenship status — individuals protected by Section 1324b of the Immigration and Nationality Act, 8 U.S.C. § 1324b
This wording has prompted concerns and disagreements about its impact.
County Councilman Chris Belles, an ordinance supporter, said the cited federal law is meant to protect individuals legally authorized to work in the United States, which would include green card holders and refugees who are legal to work. The federal law was intended to prevent employers from both hiring unauthorized workers and refusing to hire those with authorization simply because they are immigrants or due to their national origin, he said.
• Sex — male, female, or non-binary. It includes the gender of a person, gender identity, gender expression, affectional or sexual orientation, transgender identity, intersex, gender transition, sex assigned at birth, and natal sex, as perceived, presumed, or assumed by others. Sex as a class includes pregnancy, childbirth, breastfeeding, and related medical conditions.
• Gender identity — self-perception or perception by others as male, female, non-binary, or gender diverse, including an individual’s appearance, behavior, or physical characteristics. It may refer to gender expression, sex assigned at birth, transgender identity, gender transition that may be in accord with or opposed to physical anatomy, DNA, chromosomal sex, and sex assigned at birth. It includes people who are gender variant, have completed or are in the process of gender transition, or who are undergoing or have completed sex affirmation hormonal treatments or gender-affirming surgeries.
• Gender expression — the external appearance of one’s gender identity, usually expressed through behavior, clothing, haircut, voice, chosen name, and/or pronouns, and which may or may not conform to socially defined behaviors and characteristics typically associated with being male or female.
• Sexual orientation — inherent or immutable enduring emotional, romantic, or sexual attraction to other people. Includes being gay, lesbian, bisexual, pansexual, heterosexual, asexual by preference, practice, or as perceived by others.
• Genetic information — Information defined as genetic information in the Genetic Information Nondiscrimination Act of 2008.
• Marital status — the status of being single, married, separated, divorced, widowed, or a life partner.
• Familial status — one or more individuals under age 18 residing with a parent, another person with legal custody, or a designee with written permission of the parent or person with custody. Protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual under 18.
• GED rather than a high school diploma
• Physical or mental disability — an impairment that substantially limits one or more of such person’s major life activities, a record of having such an impairment, or being regarded as having an impairment.
This does not include current, illegal use of or addiction to a controlled substance, as defined in Section 102 of the Controlled Substances Act.
It does include any: physiological disorder or condition; cosmetic disfigurement or anatomical loss; mental or psychological disorder, including autism spectrum disorder, emotional or mental illness, and intellectual and learning disabilities; contagious and non-contagious diseases and conditions, including orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV infection, AIDS, Long COVID, and any other conditions protected under the Americans with Disabilities Act.
• Relationship or association with a disabled person
• Source of income — any lawful source of income, including but not limited to, earned income, child support, alimony, insurance and pension proceeds, unemployment insurance, social security, and all forms of public assistance, including social security disability insurance and supplemental security income, Temporary Assistance for Needy Families (TANF) and any successor legislation, and housing assistance programs.
• Age — includes any person over 35 and “any other person so protected by further amendment to the Federal Age Discrimination in Employment Act.”
• Hairstyles associated with an individual’s culture or religion, including locs, braids, twists, coils, Bantu knots, afros, extensions, wigs, and payot.
The other protected classes with no explicit definition provided: height, weight, ethnicity, color, ancestry, veteran status, domestic or sexual violence victim status, and use of guide or support animals and/or mechanical aids.
Who must comply
The following definitions apply to entities and some of the services that must comply:
• Employer — any person or organization employing one or more workers, excluding parents, a spouse, or children. This also applies to county government, municipalities, and school districts. The ordinance does not apply to the judicial branch of government or “any entity where application would violate the separation of powers under the Pennsylvania Constitution.”
• Educational institution — a public or private education provider, charter school, college, university, trade or training school, preschool, daycare provider, or other educational entity.
• Healthcare provider — a licensed healthcare provider, including medical doctors, osteopaths, dentists, podiatrists, optometrists, opticians, chiropractors, psychologists, social workers, pharmacists, nurses, midwives, emergency medical technicians, radiologists, X-ray technicians, therapists, physician’s assistants, and dental hygienists. It also covers group or institutional healthcare providers such as hospitals, skilled nursing and assisted living facilities, clinics, laboratories, home healthcare providers, medical offices, and their employees.
• Public accommodation — any accommodation, resort, or amusement which is open to, accepts, or solicits the patronage of the general public or offers goods or services, including loans, to the general public. It does not include any accommodations “which are in their nature distinctly private by membership within a not-for-profit mission-driven organization whose mission requires a narrowed provision of services not based on race.”
• Real estate-related transactions — includes purchasing, constructing, improving, repairing, or maintaining of residential and commercial property; making or purchasing loans or providing other financial assistance for these purposes; and selling, brokering, and appraising of real estate.
• Housing accommodations — any building, structure, mobile home site, hotel, motel, campground, shelter, dormitory, or facility used, occupied, or intended to be occupied as the home residence or sleeping place of one or more individuals, groups, or families. It does not include an owner-occupied rental in which personal living space will be shared with the owner.
• Commercial property — any building, structure or facility fully or partially used, occupied or designed for the purpose of operating a business, office, manufactory, or any public accommodation. It also covers any vacant land offered for sale, lease or held for the purpose of constructing a business, public accommodation or other structure.
• Commercial housing — accommodations held or offered for sale or rent by a real estate broker, salesperson, agent or owner-authorized representative. It does not include room rentals in a personal residence where the rental includes shared space in the personal residence.
• Common carriers —those providing transportation to the general public for compensation.
• Employment agency — any person regularly undertaking, with or without compensation, the recruitment, referral, or placement of employees.
• Labor organization — any entity that handles collective bargaining or deals with employers concerning grievances, employment conditions or terms, or other mutual aid or protection in relation to employment.
Unlawful practices
The ordinance has separate sections detailing prohibited activities in public accommodations, healthcare, education, employment, and housing.
A disclaimer said nothing in the ordinance “shall be construed to require” anyone to violate existing municipal, county, state, or federal laws.
• Public accommodations
They cannot directly or indirectly refuse, withhold from, or deny any person the “accommodations, advantages, facilities, services, or privileges” of that place due to someone’s protected class.
It notes breastfeeding mothers cannot be prohibited from or segregated within a public accommodation where they would otherwise be authorized to be.
An exception: people cannot be required to “create speech or artistic expression which is contrary to their sincerely held religious beliefs.”
• Healthcare
Providers cannot refuse or limit — based on a protected class — access to treatment, surgery, medication, health insurance benefits, participation in health programs, or access to other healthcare services.
An exception: providers cannot be forced to provide medical treatment prohibited under state or federal law.
• Educational institutions
They cannot refuse, based on protected class, access to enrollment, equal treatment, participation in programs, or otherwise discriminate against students, families, faculty, staff, administrators, or others legitimately involved with the function of the educational institution. This applies to staff compensation, hiring, volunteering, tenure, conditions or privileges of employment, or contracts.
• Employment
If an individual or independent contractor is the “best able and most competent to perform the services required,” an employer cannot, based on protected class: refuse to hire, employ, or contract with them; bar or discharge them from employment; otherwise discriminate against them in compensation, hiring, volunteering, tenure, terms, conditions, or privileges of employment or contract.
An exception: nothing in the ordinance shall “require an employer to hire, promote or retain an employee who is not qualified or not able to perform the job for which they are applying or were hired to do.”
Under some protected class definitions, it notes employers are not prohibited from adopting and enforcing a workplace rule or policy if they demonstrate it is: needed to keep an employee safe, adopted for nondiscriminatory reasons, tailored to the applicable position and activity, and applied equally to all.
• Housing
Although Section 303 is under the label of “housing discrimination protections,” it also applies to commercial property.
It states residential and commercial property sales, rentals, leases, financing, and related services cannot be denied due to someone’s protected class.
Other provisions address requirements for lending money.
An exception: this does not limit any “reasonable” local, state, or federal restrictions regarding the maximum number of occupants permitted in a dwelling.
Mission-driven private clubs that are not open to the public and provide lodging as part of their primary mission (not for commercial purposes) can also limit the rental or occupancy of their lodging to bona fide members or give preference to members.
Enforcement
A commission will be responsible for receiving and investigating complaints.
Council has not yet publicly deliberated plans for the commission makeup, which would have to be addressed in a separate ordinance.
If the commission deemed a complaint within its jurisdiction, it would send a copy to the respondent and require a written response within 60 days.
A commission investigator would determine if there is probable cause that an unlawful practice has occurred and present findings to the commission for further proceedings, which could include mediation and/or a public hearing.
Violators can be found guilty of a summary offense and, upon conviction, be sentenced to pay a fine ranging from $100 to $500, it said. The county also may seek recovery of attorney fees and other investigative costs, it said.
The ordinance said the investigator shall be one or more commission members or an independent non-member individual appointed by commission majority vote who is qualified to investigate, such as a former law enforcement officer or a person who has investigation credentials.
Based on past county history, outside investigators may be necessary.
Council had to redo the original county ethics code because attorneys argued the county ethics commission cannot legally serve as “prosecutor, jury, and judge” by handling both the investigating and adjudicating of complaints.
As a result, council revamped the ethics code to have a rotating panel of outside enforcement attorneys handle the preliminary investigation and, if warranted, prosecute the case before the commission. County ethics commission attorneys are paid $225 per hour, with an annual cap of $25,000.
Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.
Dallas Post
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