[HISTORY: Adopted by the Board of Supervisors of Upper Merion
Township 10-18-2012 by Ord. No. 2012-808. Amendments noted where applicable.]
A.
In order to ensure that all persons, regardless of a person's sexual
orientation, gender identity or gender expression, enjoy the full
benefits of citizenship and are afforded equal opportunities for employment,
housing, commercial property, and the use of public accommodations,
it is necessary that appropriate legislation be enacted.
B.
It is hereby declared to be the public policy of Upper Merion Township
to foster the employment of all individuals in accordance with their
fullest capacities regardless of a person's sexual orientation, gender
identity or gender expression.
C.
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 Township.
D.
This chapter shall be deemed an exercise of the police power of Upper
Merion Township for the protection of the public welfare, prosperity,
health and peace of the Township, its residents and the Upper Merion
Township community.
The following words and phrases, when used in this chapter,
shall have the meanings given to them in this section. To the extent
words and phrases appearing in this chapter are not expressly defined
herein, their meanings for purposes of this chapter shall be the same
as such words are defined in the Pennsylvania Human Relations Act,[1] and such words, if not therein defined, shall be construed
consistently with the Pennsylvania Human Relations Act.
The duly elected Board of Supervisors of Upper Merion Township.
Any discriminatory act(s) taken by any person, employer,
entity, employment agency, or labor organization, with respect to
or involving a transaction related to employment, public accommodations,
commercial property or housing accommodations, on the basis of a person's
actual or perceived sexual orientation, gender identity or gender
expression.
All acts or actions defined in the Pennsylvania Human Relations
Act as unlawful discriminatory practices as related to employment,
public accommodations, publicly offered commercial property or housing
accommodations, when those acts or actions are taken on the basis
of a person's actual or perceived sexual orientation, gender identity
or gender expression.
With respect to discriminatory practices, includes people,
corporations, organizations and associations employing four or more
persons within the Township. The term "employer" excludes persons
acting in a supervisory capacity unless they are an owner of the entity
employing the complainant.
The manner in which a person's gender identity is communicated
to others, through appearance, behavior, or physical characteristics
that may be in accord with, or opposed to, one's physical anatomy,
chromosomal sex, or sex at birth, and shall include, but is not limited
to, persons who are undergoing or have completed sex change.
The gender(s), or lack thereof, a person self-identifies
as, whether or not based on biological fact.
Includes:
Any building, structure, mobile home site or facility, or portion
thereof, which is used or occupied or is intended, arranged or designed
to be used or occupied as the home residence or sleeping place of
one or more individuals, groups or families, whether or not living
independently of each other; and
Any vacant land publicly offered for sale or lease for the purpose
of constructing or locating thereon any such building, structure,
mobile home site or facility.
The term "housing accommodation" shall not include any personal
residence offered for accommodation by the owner or lessee thereof
or by his or her broker, salesperson, agent or employee.
One or more individuals, partnerships, associations, organizations,
corporations, limited liability entities, legal representatives, trustees
in bankruptcy or receivers, including but not limited to any owner,
lessor, assignor, builder, manager, broker, salesman, agent, employee,
independent contractor, lending institution and the Commonwealth of
Pennsylvania, and all political subdivisions, authorities, boards
and commissions.
Any accommodation for the provision of food, beverages or
lodging, resort or amusement which is open to, accepts or solicits
the patronage of the general public, but shall not include any accommodations
which are in their nature distinctly private.
Actual or perceived homosexuality, heterosexuality and/or
bisexuality.
Upper Merion Township, County of Montgomery, Commonwealth
of Pennsylvania.
[1]
Editor's Note: See 43 P.S. § 951 et seq.
A.
Discrimination in housing, publicly offered commercial property transactions,
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.
Notwithstanding any other provision of this chapter, it shall
not be an unlawful practice for a religious corporation, organization
or association, not supported in whole or in part by governmental
appropriations, to refuse to hire, employ, house or otherwise accommodate
an individual on the basis of actual or perceived sexual orientation,
gender identity or gender expression, nor shall an employer be prevented
from enforcing a dress code which is reasonably related to the business
or profession being conducted.
A.
Pursuant to Section 12.1 of the Pennsylvania Human Relations Act,[1] there is hereby established a Human Relations Commission
in and for Upper Merion Township (hereinafter referred to as the "Upper
Merion Township Human Relations Commission" or the "Commission").
[1]
Editor's Note: See 43 P.S. § 962.1.
B.
The Commission shall consist of five members who shall serve overlapping
terms of five years each. All members of the Commission shall be appointed
by the Board of Supervisors. Members shall be residents of Upper Merion
Township. No member of the Commission shall hold any office in any
political party. Members of the Commission shall serve without compensation
with respect to any and all duties performed under this chapter but
may be reimbursed reasonable expenses incurred in the performance
of their duties, as approved by the Board of Supervisors. Each member,
when initially appointed, will have a term of one, two, three, four
or five years. The terms will be arranged in such a manner that all
future terms will be in five-year increments, with one member of the
Board up for appointment each year.
C.
One of the Commission's members shall be appointed by the members
thereof as Chairperson. The Chairperson will be responsible for setting
Commission meetings, coordinating with the Township Manager 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.
D.
The Commission shall have jurisdiction over unlawful practices committed
within the Township of Upper Merion.
E.
The Board of Supervisors hereby grants to the Commission, with respect
to unlawful practices as defined herein, all of the powers necessary
to the execution of its duties as set forth below.
F.
The Commission shall be empowered to promulgate such additional procedures
to those set forth herein as it determines to be necessary or desirable
to implement the intent of this chapter, subject to review and approval
of the Board of Supervisors.
G.
The business of the Commission will be conducted consistent with
Robert's Rules of Order unless the Commission adopts its own rules
of order, in which event the specific rules of order will override.
H.
The Upper Merion Township Board of Supervisors shall appoint two
alternate members to the Upper Merlon Township Human Relations Commission
who may be called by the Commission Chairperson to assist with complaint
procedures, including, but not limited to, mediation, investigation,
and/or public hearings for such complaints, during the actual or anticipated
absence, disqualification, or conflict of a Commission member. Alternate
members shall possess the qualifications required for Commission membership.
The term of office for an alternate member shall be five years. Any
Commission alternate shall continue to serve on the Commission in
all proceedings involving the matter for which the alternate was initially
called until such time as the Commission has made a final determination
of the matter. When so called by the Commission Chairperson, an alternate
member shall be entitled to participate in all proceedings and discussions
of the Commission to the same and full extent as provided by law for
the Commission members, including specifically the right to cast a
vote as a voting member during any proceedings.
[Added 7-18-2019 by Ord. No. 2019-862]
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 unlawful practice;
(d)
If applicable, the address and a description of any housing
accommodation or commercial property which is involved; and
(e)
Such other information as may be required by the Commission.
(2)
Complaints may be filed in person or by mail at the Township Manager's
office. All complaints must be received by the Township Manager's
office within 180 days of the alleged unlawful practice, or the complaint
will not be considered timely.
(3)
The Township Manager shall record the date and time of receiving
the complaint and shall immediately forward a complete copy to the
Chairperson of the Upper Merion Township Human Relations Commission.
B.
Notification and answer.
(1)
Within 30 days of its receipt of a complaint, the Human Relations
Commission shall determine if it has jurisdiction hereunder to hear
the complaint. If the Commission determines that it does not have
such jurisdiction, it shall dismiss the complaint and notify the aggrieved
party. If the Commission determines it has jurisdiction to hear the
complaint, it shall proceed as follows:
(2)
The respondent shall file with the Township Manager a written verified
answer to the complaint within 30 days of the respondent's receipt
of the complaint from the Township. It shall be conveyed by the Township
Manager to the Chairperson of the Upper Merion Township Human Relations
Commission within 10 days of its receipt by the Township Manager.
The Commission shall promptly send a copy of the answer to the complainant.
C.
Mediation.
(1)
After the answer has been received, the Commission shall, within
15 days, invite the parties to voluntarily participate in the mediation
of their dispute. The parties shall respond to the invitation to mediate
within 15 days of being invited to mediate. Mediation shall be conducted
in accordance with procedures promulgated by the Commission.
(2)
If mediation is elected by the parties, the parties may jointly select
a mediator, in which case they shall be jointly responsible for all
financial costs and expenses associated with mediation and may allocate
the costs of mediation as they agree. If the parties do not jointly
select a mediator, or agree to allocation of costs pursuant to approved
procedures of the Commission, the Chairperson of the Commission shall
select a mediator, who may be either a member of the Commission or
a volunteer from the community.
(3)
The parties shall notify the Commission as to whether the mediation
successfully resolved the complaint. Mediation proceedings shall otherwise
be confidential. Neither the results thereof nor any record made in
connection therewith shall be made public unless agreed to in writing
by both parties to the dispute.
D.
If the mediation has not successfully resolved the complaint, and
only if the complaint alleges a violation of this chapter which is
not otherwise proscribed under the Pennsylvania Human Relations Act
and over which the Pennsylvania Human Relations Commission does not
have jurisdiction, the Commission shall proceed as follows:
(1)
Investigation. The Commission shall, in a timely fashion, investigate
the allegations of an unlawful practice set forth in the complaint
by designating an investigator, who may be a member of the Commission.
The Commission may, in the conduct of such investigation, issue subpoenas
to any person charged with an unlawful practice, commanding such person
to furnish information, records or other documents as necessary to
assist in the Commission's investigation.
(2)
Finding of no cause. If it shall be determined after the Commission's
investigation that there is no probable cause for the allegations
of the complaint, the Commission shall cause to be issued and served
upon the parties written notice of such determination and dismissal
of the complaint. This notice shall inform the person aggrieved that
he/she has the right to pursue the matter in court.
(3)
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. If it determines
that conciliation may be a useful approach, the Commission shall designate
one of its members as a conciliator, who shall undertake conciliation
following approved procedures of the Commission.
(4)
Public hearing.
(a)
If the Commission finds it is not possible to eliminate the
unlawful practice by persuasion, conference and conciliation, the
Commission shall cause to be issued and served a written notice scheduling
a public 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 public hearing or it may, at its election, conduct such
hearing en banc. Any Commission member who acted as a mediator, investigator
or conciliator shall not participate in such public hearing except
as a witness to present the results of the investigation.
(c)
At the public hearing, both the complainant and the respondent
shall be given the opportunity to appear, with or without counsel,
to provide testimony and submit evidence. Formal rules of evidence
shall not apply, but irrelevant or unduly repetitious evidence may
be excluded by the Commission in its discretion. In addition, both
the complainant and the respondent may introduce the testimony of
additional witnesses and may submit documentary evidence.
(d)
At the public hearing, the Commission shall be represented by
the Township Solicitor. A court reporter shall make a formal record
of the proceedings.
(5)
Findings and award. If, upon all the evidence at the hearing, the
Commission shall find that a respondent has engaged in or is engaging
in any unlawful 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 practice and to take such affirmative action,
including, but not limited to: compensation for loss of work in matters
involving the unlawful practice, hiring, reinstatement or upgrading
of employees, with or without back pay, admission or restoration to
membership in any respondent labor organization, the making of reasonable
accommodations, or selling or leasing specified housing accommodations
or publicly offered commercial property upon such equal terms and
conditions as were available to other persons at the time of the unlawful
practice, and any other verifiable, reasonable out-of-pocket expenses
caused by such unlawful discriminatory practice. Back pay liability
shall not accrue from a date more than three years prior to the filing
of a complaint charging violations of this chapter.
(6)
Civil penalties. The Commission's order may also assess a civil penalty
against the respondent in an amount not exceeding $10,000 with respect
to all matters alleged in the complaint.
(7)
Attorneys' fees.
(a)
If, upon consideration of all the evidence at the public hearing,
the Commission finds that a respondent has engaged in or is engaging
in any unlawful practice, the Commission may award reasonable attorneys'
fees and costs to the prevailing complainant. Such attorneys' fees
and costs may include reasonable time for representation before the
Commission at the public hearing under this chapter but shall not
include time incurred in the filing of the complaint or appearances
before the Commission or mediator in the mediation or conciliation
process.
(b)
If, upon all the evidence at the hearing, the Commission finds
that a respondent has not engaged in or is not engaging in any unlawful
practice and that the complaint was brought in bad faith, the Commission
may award attorneys' fees and costs to the prevailing respondent.
(8)
In the event that a claim proceeds to court, the same rights and
remedies shall be available.
(9)
Finding of no discrimination. If upon all the evidence the Commission
shall find that a respondent has not engaged in any unlawful discriminatory
act, 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.
(10)
Appeal. Any order of the Commission may be appealed to the Court
of Common Pleas of Montgomery County within 30 days of its date as
provided by law.
(11)
Enforcement. When the Commission has heard and decided any complaint
brought before it, enforcement of its order shall be initiated by
the filing of a petition in court, together with a transcript of the
record of the hearing before the Commission, and issuance and service
of a copy of said petition as in proceedings in equity.
Having exhausted the administrative remedies set forth herein,
an aggrieved person shall have the right to pursue any rights or causes
of action at law or in equity to which such person may be entitled.
