[HISTORY: Adopted by the Borough Council of the Borough of
Narberth 6-21-2017 by Ord. No.
1000. Amendments noted where applicable.]
A.
The Borough of Narberth finds it necessary to enact appropriate legislation
in order to ensure that all persons within the Borough, regardless
of actual or perceived race, color, sex, religion, ancestry, genetic
information, national origin, sexual orientation, gender identity
or expression, familial status, marital status, age, mental or physical
disability, veteran status, or the use of guide or support animals
and/or mechanical aids (hereinafter collectively, "characteristics")
enjoy the full benefits of citizenship and are afforded equal opportunities
for employment, commercial property, housing and the use of public
accommodations, and to have equal access to post-secondary educational
institutions.
B.
It is hereby declared to be the public policy of Narberth Borough
to foster the employment of all individuals in accordance with their
fullest capacities regardless of their actual or perceived characteristics,
and to safeguard their right to obtain and hold employment without
such discrimination, to assure equal opportunities to all such individuals
and to safeguard their rights to public accommodation and to secure
housing accommodation and commercial property without regard to their
actual or perceived characteristics, and to have equal access to post-secondary
educational institutions without regard to their actual or perceived
characteristics.
C.
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.
D.
This chapter shall be deemed an exercise of the police power of Narberth
Borough for the protection of the public welfare, prosperity, health
and peace of the Narberth community.
To the extent words and phrases appearing in this chapter are
not expressly defined herein, the meaning of the words and phrases
in this chapter shall be construed consistently with the Pennsylvania
Human Relations Act.[1] The following words and phrases when used in this chapter
shall have the following meanings:
The Borough of Narberth, County of Montgomery, Commonwealth
of Pennsylvania.
The Borough Council of Narberth Borough.
Any discriminatory act(s) taken by any person, employer,
employment agency, labor organization or public accommodation on the
basis of actual or perceived race, color, sex, religion, ancestry,
genetic information, national origin, sexual orientation, gender identity
or expression, familial status, marital status, age, mental or physical
disability, veteran status, or use of guide or support animals and/or
mechanical aids.
Discriminatory acts include, but are not limited to, all
acts defined in the Pennsylvania Human Relations Act, Title VII of
the Civil Rights Act of 1991, the Age Discrimination in Employment
Act and/or any other federal law addressing discrimination based on
any protected characteristic protected by this chapter, or any acts
of discrimination regardless of whether such actions would otherwise
be lawful under state or federal law. The fact that the Pennsylvania
Human Relations Act would not define a practice as unlawful when that
practice is taken on the basis of actual or perceived sexual orientation,
gender identity or expression, genetic information, veteran status,
or marital status shall not exempt such practice from being considered
a discriminatory act under this chapter.
Those post-secondary programs defined as educational institutions
pursuant to the Pennsylvania Fair Educational Opportunities Act, 24
P.S. § 5001 et seq.
A person who is hired for a wage, salary, fee, or payment
to perform work for an employer on a regular basis. A person will
be deemed to be an employee if such person regularly performs services
for the employer for compensation and the employer controls what work
will be done by the person and how it will be done. The term does
not include any individuals who, as a part of their employment, reside
in the personal residence of the employer.
Any person who employs one or more employees, including 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,
or lack thereof, 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 transgendered or gender variant.
That information which is defined as genetic information
in the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C.A.
§ 2000ff.
The term 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 rent by the owner or lessee thereof or by the
owner/lessee’s broker, salesperson, agent or employee.
[Amended 4-21-2021 by Ord. No. 1032]
This chapter, which shall also be known as the "Human Relations
Ordinance."
Any natural person, fraternal, civic or other membership
organization, corporation, general or limited partnership, proprietorship,
limited liability company, or similar business organization, including
the Borough, its departments, boards and commissions, and other for-profit
and nonprofit organizations.
A building or structure containing living quarters occupied
or intended to be occupied by no more than two individuals, two groups
or two families living independently of each other and used by the
owner or lessee thereof as a bona fide residence for the owner or
lessee and any members of the owner or lessee’s family forming
their household.
[Amended 4-21-2021 by Ord. No. 1032]
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(l) of the Pennsylvania Human Relations Act, 43 P.S. § 954(l),
but shall not include any accommodations which are in their nature
distinctly private.
Actual or perceived homosexuality, heterosexuality and/or
bisexuality.
[1]
Editor's Note: See 43 P.S. § 951 et seq.
A.
Discrimination in housing, employment, commercial property, public
accommodations or access to post-secondary educational institutions
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, the following
shall not be considered unlawful under this chapter, or shall otherwise
not apply:
A.
Employment practices for a religious corporation, organization, or
association, not supported in whole or in part by governmental appropriations,
in refusing to hire, house, employ, or otherwise accommodate an individual
on the basis of such religious organization's established and demonstrated
religious principles or beliefs.
B.
Selections or preferences by a religious institution, denomination
or organization, or any charitable or educational organization which
is operated or controlled by a religious organization, given to a
member of that same religious organization when determined by such
organization to promote the established and demonstrated religious
principles or beliefs of the organization.
C.
Selections or preferences by any bona fide private or fraternal organization
given to a member of that same private or fraternal organization when
determined by such organization to promote the aims, purposes or fraternal
principles for which the organization is established or maintained.
D.
Enforcement of a dress code or grooming which is reasonably related
to the business or profession being conducted, provided that:
(1)
Such
dress code or grooming is not a subterfuge for discriminatory purposes;
(2)
The
employer reasonably accommodates the bona fide religious practices
or disability of an employee; or
(3)
The
enforcement of a dress code or grooming does not have a disparate
impact on employees with a characteristic protected by this chapter.
E.
The advertising, rental, or leasing of housing accommodations in
a single-sex dormitory.
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 Narberth Borough (hereinafter referred to as the "Narberth Human
Relations Commission" or the "Commission").
B.
The Narberth Human Relations Commission shall consist of five members
and two alternate members who shall serve terms of five years each.
At all times there shall be an odd number of members. All members
of the Commission shall be appointed by the Borough Council and shall
be residents of the Borough. Members of the Commission shall serve
without salary but may be paid expenses incurred in the performance
of their duties, as approved by Borough Council. 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 Commission
up for appointment each year.
C.
One of the Commission's members shall be appointed as the Chairperson
of the Commission by Borough Council. The Chairperson will be responsible
for setting Commission meetings, coordinating with the Borough Manager
regarding complaints and answers received, and generally ensuring
that the duties of the Commission are fulfilled. The Chairperson may
delegate responsibility for Commission duties to specific members
of the Commission.
D.
Borough Council hereby grants to the Commission all of the powers
necessary to execute its duties, as established in this chapter.
E.
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 Borough Council.
F.
A member of the Commission shall hold office until their successor
has been appointed by Borough Council. However, a member of the Commission
may be removed at any time, with or without cause, by a majority vote
of Borough Council.
[Amended 4-21-2021 by Ord. No. 1032]
G.
If a vacancy shall occur by reason of the death, disqualification,
resignation, or removal of a member, a successor shall be appointed
by Borough Council to fill the remainder of the unexpired term.
H.
The Commission shall keep a full record of its business and shall
no less than annually make a written report of its activities, if
any, to Borough Council. Interim reports may be made as often as may
be necessary or as requested by Borough Council. In addition to written
reports, and upon request of Borough Council, the Commission shall
send a representative to attend a Council/Committee meeting in order
to present on any matters so requested.
A.
Filing a complaint.
(1)
Any person(s) claiming to be aggrieved by an unlawful practice, as
set forth above, may submit a signed, verified, written, and completed
complaint alleging violations of this chapter. The written complaint
shall include the following information:
(a)
The name, address, and contact information of the aggrieved
person(s);
(b)
The name and address, and contact information of the person(s)
alleged to have committed the prohibited practice;
(c)
A concise statement of the facts substantiating the complaint,
including pertinent dates, locations, and persons involved;
(d)
If applicable, the address and a description of the public accommodation,
dwelling, commercial property, or housing accommodation which is involved;
and
(e)
Such other information as may be required by the Borough.
(2)
Completed
written complaints must be delivered to the Borough Office to the
attention of the Borough Manager. All completed complaints must be
received by the Borough Office within 180 days of the alleged act
of discrimination to be considered timely.
(3)
The
Borough Manager shall record the date and time the written complaint
was delivered to the Borough Office and shall convey the complaint
received to the Chairperson of the Commission within 10 work days
of the Office's receipt of the completed, written complaint. The Borough
Manager shall return to the submitter any complaints deemed incomplete
or not in technical compliance with this section, along with an explanation
for the rejection.
(4)
The
Borough Office may promulgate forms for use by persons wishing to
file a complaint. However, complaints which are prepared without the
use of an approved form shall be deemed acceptable under this chapter
so long as the requirements of this section can be clearly determined
from the document submitted.
B.
Notification and answer.
(1)
Within 30 days of its receipt of a complaint from the Borough Manager,
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 allegedly aggrieved party. If the Commission determines
it has jurisdiction to hear the complaint, it shall proceed to:
(2)
If the respondent wishes to address the complaint, the respondent
shall file a written verified answer to the complaint within 30 days
of receipt of the complaint. An answer to a complaint may be filed
in the same manner as an original complaint or submitted to the Chairperson
of the Commission. If the answer is filed with the Borough Office,
it shall be conveyed by the Borough Manager to the Chairperson of
Commission within 10 work days of the Borough Office's receipt thereof.
The Commission shall promptly send a copy of the answer to the person(s)
allegedly aggrieved.
C.
Mediation.
(1)
Mediation conference. If an answer to the complaint has been received,
or 10 days following the deadline to answer the complaint if no answer
was received, the Commission shall invite the parties to voluntarily
participate in a mediation conference concerning the dispute. The
parties shall respond to the invitation to participate in a mediation
conference within 15 days of being invited to participate.
(2)
Conference procedures. 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. The parties shall
meet with mediator at a location mutually agreeable to the parties
within 30 days of the agreement to participate in the mediation. 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.
(3)
Conciliation. The mediator shall notify the Commission of whether
the mediation conference resulted in a resolution of the complaint
within 10 days from the date of such resolution or, alternatively,
10 days from the date that the mediator determines that mediation
will not be possible. In the event the complaint is resolved through
the mediation, the Commission shall notify the parties that the complaint
has been dismissed.
D.
Disposition of the complaint. Provided the Commission has not elected under Subsection F of this section to use expanded procedures, and if the complaint is not resolved through the mediation conference, the Commission shall notify the complainant that the complainant may pursue any available remedy under law or equity, including, but not limited to, pursuing the matter in court or pursuing any available claims under the Pennsylvania Human Relations Commission and/or the federal Equal Employment Opportunity Commission.
E.
Failure of complainant to respond or cooperate with investigation.
Failure of the complainant to respond to the Commission's inquiries
in a timely manner, attend a scheduled mediation conference, or otherwise
participate or cooperate with any of the Commission's proceedings
or investigation shall result in a dismissal of the complaint, with
notice being provided to both parties by the Commission of such dismissal
and the reasons therefor.
F.
Option of the Commission to elect for expanded procedures. The Commission shall have the authority to elect, upon majority vote, to adopt expanded procedures as set forth in Subsections G through L of this section subject to approval by Borough Council and appropriation of necessary funding, if any, for such procedures. Any such election for expanded procedures must be approved by Council prior to the filing of a complaint in order for such procedures to be utilized in resolving the complaint. In the event that such procedures are adopted, they must, while in effect, be applied to all complaints that are not resolved through a mediation conference. If the Commission has adopted expanded procedures, it may also, by majority vote and in its sole discretion, eliminate such procedures.
G.
Expanded procedures - investigation and dismissal of complaint.
(1)
Investigation. If the mediation conference was successful in resolving the complaint, the Commission shall follow the procedures set forth in Subsection C(3) of this section for dismissing the complaint. If the mediation conference was not successful in resolving the complaint, 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 with information regarding the alleged unlawful practice to furnish such information, records or other documents to the Commission, or to give sworn testimony, as necessary to assist in its investigation.
(2)
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
complainant that the complainant may proceed to pursue any available
remedy under law or equity, including, but not limited to, pursing
the matter in court or pursing any available claims under the Pennsylvania
Human Relations Commission and/or the federal Equal Employment Opportunity
Commission.
(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.
H.
Expanded procedures - public hearing.
(1)
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
scheduling a public hearing before the Commission at a time and place
to be specified in such notice.
(2)
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
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.
(3)
At the public hearing, the case in support of or against the complaint
shall be presented to the Commission by the respective parties or
their attorneys. The complainant must appear at the hearing to provide
testimony, otherwise the complaint shall be dismissed. If the respondent
does not appear at the hearing, the complainant shall still present
testimony to substantiate the complaint. Both the complainant and
the respondent may introduce the testimony of additional witnesses
and may submit other relevant evidence. The Commission and the parties
shall not be bound by the strict rules of evidence at the hearing,
but irrelevant or unduly repetitious evidence may be excluded by the
Commission in its discretion.
(4)
At the public hearing, the Commission shall be represented by the
Borough Solicitor. A court reporter shall make a formal record of
the proceedings.
I.
Expanded procedures - findings and award.
(1)
If, after receiving all the evidence at the hearing, the Commission
finds by a preponderance of the evidence that the respondent has engaged
in or is engaging in any unlawful practice, as set forth above, the
Commission shall state its findings of fact and shall issue and cause
to be served on the respondent an order requiring the respondent to
cease and desist from such unlawful practices. Additionally, the Commission
may order, in its sole discretion, 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, compensatory damages, punitive damages,
emotional distress damages, payment of any other verifiable, reasonable
out-of-pocket expenses caused by such unlawful discriminatory practice,
including, but not limited to, payment of the complainant's reasonable
attorneys' fees and costs, or any remedies available to the Pennsylvania
Human Relations Commission under the Pennsylvania Human Relations
Act. Such attorneys' fees 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. 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. It shall be the duty of the complainant
to substantiate at the public hearing the amounts of any such losses
to be ordered by the Commission.
(2)
If the Commission determines that the respondent has engaged in or is engaging in any such unlawful practices as set forth is Subsection I(1) above, the Commission shall order that the fees incurred by the Borough, including the Borough's attorneys' fees associated with the complaint and the hearing, and other costs of the public hearing, including advertising and court reporting costs, shall be paid by the respondent.
(3)
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.
(4)
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 also finds that the complaint was brought by the complainant
in bad faith, or the complainant fails to appear at the public hearing
without a reasonable excuse, the Commission may award attorneys' fees
and costs to the prevailing respondent, and shall order the complainant
to pay for the Borough's attorneys' fees and public hearing costs.
J.
Expanded procedures - finding of no discrimination. If upon all the
evidence the Commission shall find that a respondent has not engaged
in any unlawful discriminatory practice by a preponderance of the
evidence, 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. The Commission shall also provide
a notice to the complainant that the complainant may proceed to pursue
any available remedy under law or equity, including, but not limited
to, pursing the matter in court or pursing any available claims under
the Pennsylvania Human Relations Commission and/or the federal Equal
Employment Opportunity Commission.
K.
Expanded procedures - appeal. Any order of the Commission may be
appealed to the Court of Common Pleas of Montgomery County within
60 days of its date as provided by law. The Borough shall retain the
right to intervene in any appeal.
L.
Expanded procedures - 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.
Nothing in this chapter limits the right of an aggrieved person to
recover under any other applicable law or legal theory.
