[HISTORY: Adopted by the Borough Council of the Borough of
Downingtown 3-19-2014 by Ord. No. 2014-05.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 52.
[1]
Editor's Note: This ordinance was originally adopted
as Ch. 90, but was redesignated in order to maintain the alphabetical
organization of the Code.
To ensure all individuals, regardless of genuine or perceived
race, color, sex, religion, ancestry, genetic information, national
origin, sexual orientation, gender identity or expression, familial
or marital status, age, mental or physical disability, use of guide
or support animals and/or mechanical aids be given equal opportunities
for employment, housing and the use of public accommodations, it is
essential that appropriate legislation be adopted.
It is hereby confirmed to be the public policy of the Borough
of Downingtown to promote and uphold the fair and equal employment
for all individuals in accordance with their utmost abilities regardless
of genuine or perceived race, color, sex, religion, ancestry, genetic
information, national origin, sexual orientation, gender identity
or expression, familial or marital status, age, veteran status, mental
or physical disability, use of guide or support animals and/or mechanical
aids, and to protect their right to obtain and hold employment without
discrimination, and to declare equal opportunities for all persons
and to protect their rights to secure housing accommodation, public
accommodation and commercial property regardless of genuine or perceived
race, color, sex, religion, ancestry, genetic information, national
origin, sexual orientation, gender identity or expression, familial
or marital status, age, mental or physical disability, use of guide
or support animals and/or mechanical aids.
As used in this chapter, the words and phrases herein defined
shall have the following meaning unless the context otherwise requires:
The Borough of Downingtown.
Any discriminatory act(s) taken by any person, employer,
landlord, employment agency, labor organization or public accommodation
on the basis of genuine or perceived race, color, sex, religion, ancestry,
genetic information, national origin, sexual orientation, gender identity
or expression, familial or marital status, age, mental or physical
disability, use of guide or support animals and/or mechanical aids.
All acts defined in the Pennsylvania Human Relations Act[1] as unlawful discriminatory practices. The fact that the
Pennsylvania Human Relations Act would not define a practice as unlawful
when that practice is taken on the basis of genuine or perceived sexual
orientation, gender identity or expression, genetic information, familial
or marital status shall not exempt such practice from being considered
a discriminatory act under this chapter.
Does not include any individuals who, as a part of their
employment, reside in the personal residence of the employer.
Any person or entity who employs one or more employees, including
but not limited to the Borough, its departments, boards and commissions,
and any other government agency within its jurisdiction.
Self perception, or perception by others, as male or female,
and shall include an individual's appearance, behavior, or physical
characteristics, that may be in accord with, or opposed to, one's
physical anatomy, chromosomal sex, or sex assigned at birth, and shall
include, but is not limited to, persons who are undergoing or have
completed sex reassignment, are transgender or gender variant.
That information which is defined as genetic information
in the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C.
§ 2000ff.
This chapter will also be known as the "Anti-Discrimination
Ordinance."
Any natural person, fraternal, civic or other membership
organization, corporation, general or limited partnership, proprietorship,
limited liability company, or similar business organization, including
but not limited to the Borough, its departments, boards and commissions,
and other for-profit and nonprofit organizations.
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 or is listed
in Section 4(1) of the Pennsylvania Human Relations Act, 43 P.S. § 954(1),
but shall not include any accommodations which are in their nature
distinctly private.
Genuine or perceived homosexuality, heterosexuality and/or
bisexuality.
[1]
Editor's Note: See 43 P.S. § 951 et seq.
A.
Discrimination in housing, employment or public accommodations is
prohibited under this chapter.
B.
Retaliation against any individual because such individual has opposed
any practice forbidden by this chapter, or because such individual
has made a charge, testified or assisted in any manner in any investigation,
proceeding or hearing under this chapter is prohibited under this
chapter.
C.
Aiding, abetting, inciting, compelling or coercing the doing of any
act declared by this chapter to be an unlawful practice, or obstructing
or preventing any person from complying with the provisions of this
chapter, is prohibited under this chapter.
A.
Nothing in this chapter shall be construed as supporting or advocating
any particular doctrine, position, point of view, lifestyle or religious
view. To the contrary, it is the intention of this chapter that all
persons be treated fairly and equally, and it is the express intent
of this chapter to guarantee fair and equal treatment under the law
to all people of the Borough of Downingtown.
B.
This chapter shall be deemed an exercise of the police power of the
Borough of Downingtown for the protection of the public welfare, prosperity,
health and peace of the Borough.
C.
Notwithstanding any other provision of this chapter, it shall not
be an unlawful employment practice for a religious corporation or
association, not supported in whole or in part by governmental appropriations,
to refuse to hire or employ an individual on the basis of religion.
D.
Nothing in this chapter shall be interpreted to prohibit a religious
organization, religious denomination, or association of religious
organizations or denominations that is exempt from federal taxation
under Section 501(c)(3) of the Internal Revenue Code, or any organization
affiliated with that religious organization, religious denomination,
or association of religious organizations or denominations, from engaging
in any conduct or activity that is required by, or that implements
or expresses its religious beliefs or tenets of faith. Nor shall anything
in this chapter be interpreted to require any such religious organization,
religious denomination, or association of religious organizations
or denominations, or any organization affiliated with that religious
organization, religious denomination, or association of religious
organizations or denominations to engage in any conduct or activity
that is prohibited by its religious beliefs or tenets of faith. Nor
shall any such religious organization, religious denomination, or
association of religious organizations or denominations be required
to engage in any conduct or activity that would violate its religious
beliefs or tenets, as a condition of entering into any contract with
any agency of this Borough.
A.
Pursuant to 43 P.S. § 962.1 of the Pennsylvania Human Relations
Act, there is hereby established a Human Relations Commission in and
for Downingtown (hereinafter referred to as the "Downingtown Human
Relations Commission" or the "Commission").
B.
The Downingtown Human Relations Commission shall consist of no fewer
than three and no more than five voting members, who shall serve overlapping
terms of four years each. At all times there shall be an odd number
of members. The Commission members shall be appointed by and with
the approval of Borough Council. The Commission may elect up to three
nonvoting, ex officio members to broaden the diversity that serves
on the Commission. Members shall be residents of the Borough or business
owners who operate within the Borough or own property that dwells
within the Borough limits. No voting member of the Downingtown Human
Relations Commission shall hold any office in any political party.
Members of the Downingtown Human Relations Commission shall serve
without salary but may be paid expenses incurred in the performance
of their duties, as approved by Borough Council.
C.
The Commission shall select one of its members as the Chairperson
of the Commission. The Chairperson will be responsible for setting
Commission meetings, coordinating with the Borough Administration
regarding received complaints and answers, and generally ensuring
that the duties of the Commission are fulfilled. The Chairperson may
delegate responsibility for Commission duties to specific Commissioners
or to paid staff, if applicable.
D.
Borough Council hereby grants to the Downingtown Human Relations
Commission all of the powers necessary to the execution of its duties
(as set forth below), provided that those powers shall not exceed
those exercised by the Pennsylvania Human Relations Commission under
the Pennsylvania Human Relations Act.
The Commission Roles and Responsibilities shall entail:
A.
Promote mutual understanding, respect and cooperation among all racial,
cultural, religious, ethnic, nationality and other groups within the
Borough.
B.
Make studies into the status of human relations in the Borough.
C.
Cooperate with and assist other organizations, public or private,
to improve relationships among the citizens of the Borough.
D.
Conduct an educational program for furtherance of the improvement
of human relations in the Borough.
E.
Act as a referral group for complaints of alleged discrimination
within the Borough and, wherever possible, the Commission shall refer
the complainants to appropriate social, civic or government agencies
for further action.
A.
Filing a complaint.
(1)
Any person(s) claiming to be aggrieved by an unlawful practice may
make, sign and file a verified complaint alleging violations of this
chapter, which shall include the following information:
(a)
The name and address of the aggrieved person(s);
(b)
The name and address of the person(s) alleged to have committed
the prohibited practice;
(c)
A concise statement of the facts, including pertinent dates,
constituting the alleged discriminatory practice;
(d)
If applicable, the address and a description of the dwelling
unit which is involved; and
(e)
Such other information as may be required on request by the
Borough/Human Relations Commission.
(2)
Complaints may be filed in person at the Borough Administration office
or by mailing such complaints to the Borough Administration office
or to the Chairperson of the Human Relations Commission. All complaints
must be received by the Borough Administration office or by the Human
Relations Commission within 180 days of the alleged act of discrimination
to be considered timely.
(3)
The Borough Administration office shall convey all original complaints
received by that office to the Chairperson of the Human Relations
Commission within 10 days of the office's receipt of such complaints.
B.
Notification and answer.
(1)
Within 30 days of its receipt of a complaint, the Human Relations
Commission shall:
(a)
Send a copy of the complaint to the person(s) charged with a
discriminatory practice [the "respondent(s)"]; and
(b)
Send a notice to the person(s) aggrieved, informing them that
the complaint has been received. If the complaint alleges discrimination
on a basis prescribed under federal or state law, the notice sent
to the person(s) aggrieved shall also inform them of the right to
file with the state Human Relations Commission and/or with the federal
Equal Employment Opportunity Commission.
(2)
The respondent(s) shall file a written verified answer to the complaint
within 60 days of receipt of the complaint. An answer to a complaint
may be filed in the same manner as an original complaint. If the answer
is filed with the Borough Administration office, it shall be conveyed
by the Borough Manager to the Chairperson of the Human Relations Commission
within 10 days of the Borough Manager's office's receipt
thereof. The Commission shall promptly send a copy of the answer to
the person(s) aggrieved.
C.
Fact finding conference.
(1)
After the answer has been received, the Commission shall, within
60 days, invite the parties to voluntarily participate in a fact finding
conference concerning the dispute. The parties shall respond to the
invitation to participate in a fact finding conference within 30 days
of being invited to participate.
(2)
If the parties agree to participate in a fact finding conference, the parties shall meet with a Commission member at a location mutually agreeable to the parties within 30 days of the agreement to participate. Each party will be invited at the fact finding conference to present evidence and documents relevant to the complaint. The fact finding conference will not be a public event, and no record of the conference will be created, excepting the findings of fact detailed in Subsection C(3) of this Section.
(3)
The parties shall notify the Commission of whether the fact finding
conference resulted in a resolution of the complaint. In the event
the complaint is resolved, the Commission shall notify the parties
that the complaint has been dismissed. In the event the complaint
is not resolved through the fact finding conference, then the Commissioner,
within 30 days, shall prepare findings of fact and a conclusion as
to whether the Commissioner finds probable cause that an unlawful
practice has occurred.
D.
Disposition of the complaint. Provided the Commission has not elected under Subsection E of this section to use expanded procedures, and if the complaint is not resolved through the fact finding conference, the Commission shall, at the second Commission meeting following the fact finding conference, consider the findings prepared by the Commissioner who conducted the fact finding conference. The Commission shall accept or reject the findings by public vote. The Commission shall provide the parties with the findings of fact and conclusion, shall notify the parties of the outcome of the vote, and this notice shall also indicate that the person aggrieved has a right to pursue the matter in court by filing a lawsuit.
E.
Option of the Commission to elect for expanded procedures. The Commission shall have the authority to elect to adopt expanded procedures as set forth in Subsection F of this section subject to approval by Borough Council and appropriation of funding by Borough Council for such procedures. A majority of Commission members must vote in favor of adopting expanded procedures in order for such procedures to be adopted. In the event that such procedures are adopted, they must, while in effect, be applied to all complaints that are not resolved through a fact finding conference. If the Commission has adopted expanded procedures, it may also, by majority vote and in its sole discretion, eliminate such procedures.
F.
Expanded procedures:
(1)
Dismissal or nondismissal of the complaint. If the fact finding conference was successful in resolving the complaint, the Commission shall follow the procedures set forth in Subsection C(3) of this section.
(2)
Investigation. The Commission shall, in a timely fashion, investigate
the allegations of discrimination set forth in the complaint. The
Commission may, in the conduct of such investigation, issue subpoenas
to any person charged with an unlawful practice to furnish information,
records or other documents, or to give sworn testimony, as necessary
to assist in its investigation. The Commission may seek enforcement
of its subpoena by Petition to the Court of Common Pleas of Chester
County as appropriate.
(3)
Finding of no cause. If it shall be determined after the Commission's
investigation that there is no basis for the allegations of the complaint,
the Commission shall cause to be issued and served upon the parties
written notice of such determination. This notice shall inform the
person aggrieved that he/she has the right to pursue the matter in
court by filing a lawsuit.
(4)
Conciliation. If the Commission, after investigation, determines
that probable cause exists for the allegations of the complaint, the
Commission shall immediately endeavor to eliminate the unlawful practice
complained of by persuasion, conference and conciliation.
(5)
Public hearing.
(a)
If the Commission, in its discretion, finds it is not possible
to eliminate the unlawful practices by persuasion, conference or conciliation,
the Commission shall cause to be issued and served a written notice,
together with a copy of the complaint, which informs the respondent
that the respondent must answer the charges of such complaint at a
hearing before the Commission at a time and place to be specified
in such notice.
(b)
The Commission may designate one or more of its members to preside
at such a hearing or it may, at its election, conduct such hearing
with a panel of either two or three Commissioners.
(c)
The case in support of the complaint may instead be presented
by the complainant's attorney, if the complainant is represented.
Both the complainant and the respondent may appear at the hearing
with or without counsel and provide testimony. In addition, both the
complainant and the respondent may introduce the testimony of additional
witnesses and may submit documentary evidence. The Commission and
the parties shall not be bound by the strict rules of evidence at
the hearing.
(6)
Findings. If upon all the evidence at the hearing the Commission
shall find that a respondent has engaged in or is engaging in any
unlawful discriminatory practice as defined in this chapter, the Commission
shall state its findings of fact and shall issue and cause to be served
on such respondent an order requiring such respondent to cease and
desist from such unlawful discriminatory practice and to take such
additional action as the Commission deems appropriate. The Commission
shall have the authority to order any remedies available to the Pennsylvania
Human Relations Commission under the Pennsylvania Human Relations
Act.
(7)
Finding of no discrimination. If upon all the evidence the Commission
shall find that a respondent has not engaged in any unlawful discriminatory
practice, the Commission shall state its findings of fact and shall
issue and cause to be served on the parties an order dismissing the
complaint as to such respondent.
A.
Any person(s) aggrieved by a violation of this chapter shall have
a right of action in the appropriate Court of Common Pleas any other
court of competent jurisdiction and may recover for each violation
the following remedies:
(1)
Back pay, front pay and other actual damages, as those remedies are
defined in the Pennsylvania Human Relations Act and case law interpreting
the same;
(2)
Emotional distress damages;
(3)
Exemplary damages;
(4)
Reasonable attorney's fees and court costs; and
(5)
Such other relief, including injunctive relief, as the court may
deem appropriate.
B.
The right of action created by this chapter may be brought upon receipt
by the aggrieved person(s) of notice that the Commission has dismissed
the complaint or, if no such notice is received, after one year from
the date of the filing of the complaint. If the person aggrieved has
received notice that the Commission has dismissed the complaint, an
action under this chapter must be brought by the aggrieved person
within one year from the date of receipt of said notice or it will
be barred. Equitable principles such as waiver, estoppel and equitable
tolling shall apply to the time limitations for the filing of any
complaint or other pleading under this chapter.
C.
Nothing in this chapter limits the right of an aggrieved person to
recover under any other applicable law or legal theory.
The Downingtown Human Relations Commission shall keep records
of its meetings and activities. The Downingtown Human Relations Commission
shall provide advisory reports on a quarterly basis which shall be
forwarded to Downingtown Borough Council and the Borough of Downingtown
Administration.
Borough Council retains the right to review the provisions of
this chapter.
