The Lehigh County Human Relations Ordinance was enacted February 26, 2024, establishing county-specific non-discrimination requirements for employment, housing, education, health care and public accommodations. The ordinance also creates a Lehigh County Human Relations Commission charged with investigating and enforcing claims of discrimination. The ordinance becomes effective June 1, 2024.

Expanded Protected Characteristics and Employer Coverage

With respect to employment, the ordinance establishes the following protected characteristics, some of which exceed present federal law protections: race, ethnicity, color, religion, creed, national origin or citizenship status, ancestry, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), gender identity, gender expression, sexual orientation, genetic information, marital status, familial status, earning a GED rather than high school diploma, physical or mental disability, relationship or association with a disabled person, source of income, age, height, weight, veteran status, use of guide or support animals and/or mechanical aids, or domestic or sexual violence victim status. Importantly, the ordinance protects both "actual" and "perceived" protected characteristics. It also expressly prevents employers from denying employment because of a "prior disability."

Unlike Title VII or Pennsylvania state law, any "person or organization" who employs even a single employee is covered by the law.

Prohibitions Relating to Criminal Record History and Salary History

The ordinance follows recent nationwide trends relating to use of criminal history and salary history in employment. Specifically, employers may not:

• Ask, on an employment application, whether the applicant has ever been convicted of a crime;
• Require a job applicant to disclose prior criminal convictions until after an initial interview;
• Consider conviction records that do not relate to an applicant's suitability for employment; or
• Ask a job applicant what their salary is or was from any current or previous employment.

The law specifically prohibits "[e]licit[ing] any information or mak[ing] or keep[ing] a record of, or us[ing] any form of application or application blank, containing questions or entries concerning the protected class of any applicant for employment." This resembles recently enacted laws around the country that, for instance, prohibit employers from requiring applicants to disclose age on employment applications.

Remedial Provisions

If an employee believes an employer has violated any provision of the ordinance, they can file a verified complaint with the Lehigh County Human Relations Commission (created by the ordinance), within 180 days of the alleged act of discrimination, similar to the process currently before the Pennsylvania Human Relations Commission. The ordinance also provides for a private right of action if the Commission dismisses the complaint, or a year passes after filing of the complaint.

Recommendations

Pennsylvania employers with operations in Lehigh County should review and if necessary revise application materials and hiring procedures to comply with the new ordinance. This is particularly important with respect to the ordinance's prohibitions that exceed state law, such as the restrictions on use of certain application questions and restrictions related to criminal record and salary history. Employers should also familiarize themselves with the significantly expanded list of protected characteristics under the law and consider training programs to ensure compliance when making employment decisions.

Posted: May 8, 2024