PROPOSED RULEMAKING
HUMAN RELATIONS COMMISSION
[16 PA. CODE CH. 45]
Housing Accommodations/Commercial Property
[29 Pa.B. 3895] The Pennsylvania Human Relations Commission (Commission), which earlier adopted the guidelines and a statement of policy relating to advertising, now presents those guidelines and statement of policy in the form of proposed rulemaking. The guidelines and a statement of policy were published at 27 Pa. B. 5485 (October 18, 1997). An amendment to the guidelines and a statement of policy was published at 28 Pa.B. 5578 (November 7, 1998). In compliance with and under the authority of the act of June 25, 1997 (P. L. 326, No. 34) (Act 34), the guidelines and statement of policy were not subject to review under section 205 of the act of July 31, 1968 (P. L. 469, No. 240) (45 P. S. § 1205) and are effective for a period not to exceed 2 years from the effective date of Act 34, which was August 24, 1997. The guidelines and statement of policy as amended were to serve as proposed rulemaking. On or before the expiration of the 2-year period, the advertising guidelines and statement of policy as amended expire and are to be replaced by regulations which shall have been promulgated, adopted and published as provided by law.
Under the publication of the guidelines and statement of policy as amended, the Commission sought input from interested and affected groups and requested comments from the readers. The guidelines and statement of policy as amended have been published in numerous newsletters and widely circulated by the Commission. They have been favorably received by the affected organizations and groups. Since publication, the Commission has received many inquiries regarding advertisements and has successfully developed and followed the procedures spelled out in the guidelines and statement of policy as amended.
The purpose of this proposed rulemaking is to inform the public of words, phrases, symbols and the like, which are unlawful, when used in housing advertisements. In addition, they are a guide to advertisers and publishers in their efforts to insure that any housing advertisements published or caused to be published by them do not violate Act 34. This proposed rulemaking also contain rules which if followed will constitute reasonable efforts to comply with the advertising provisions of Act 34 so that a finding of knowing and willful violation of those portions of Act 34 is precluded.
Fiscal Impact
The Commission believes that the regulations will result in no additional cost to the Commission or to the general public. Any additional costs which arise were created by the Act 34 and not this proposed rulemaking.
Paperwork Requirements
No additional, routine paperwork will be required by the new regulations.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 13, 1999, the Commission submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Committee on State Government and the Senate Committee on Labor and Industry. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Commission in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the closing of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review of objections raised, prior to final publication of the amendments, by the Department, the General Assembly and the Governor.
Effective Date
This proposed rulemaking shall take effect upon final publication in the Pennsylvania Bulletin.
Contact Person/Public Comments
Interested persons are invited to submit written comments regarding this proposed rulemaking in writing to Nancy L. Gippert, Assistant Chief Counsel, Human Relations Commission, 101 South Second Street, Suite 300, P. O. Box 3145, Harrisburg, PA 17101. The comments should submitted within 60 days of publication.
HOMER C. FLOYD,
Executive DirectorFiscal Note: 52-10. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 16. COMMUNITY AFFAIRS
PART II. GOVERNOR'S OFFICE
Subpart A. HUMAN RELATIONS COMMISSION
CHAPTER 45. HOUSING ACCOMMODATIONS/COMMERCIAL PROPERTY (Editor's Note: As part of this proposal, the Commission is proposing to delete the existing text of the statement of policy in 16 Pa. Code Chapter 45, Subchapter B, and replace it with the regulations as proposed in Annex A.)
§§ 45.101--45.103. (Reserved).
§§ 45.121--45.126. (Reserved).
§ 45.141. (Reserved).
§ 45.142. (Reserved).
§§ 45.151--45.154. (Reserved).
GENERAL
Sec.
45.161. Purpose. 45.162. Definitions. 45.163. General rules. PROHIBITED USAGES
45.171. Race/color/national origin. 45.172 Familial status/age. 45.173. Disability. 45.174. Religion. 45.175. Sex. LIST OF WORDS OR PHRASES TO AVOID
45.181. List. 45.182. Words to be avoided. ADDITIONAL REQUIREMENTS
45.191. Advertisements. 45.192. Affirmative defenses. 45.193. Good faith efforts. 45.194. Federal regulations.
GENERAL §§ 45.161. Purpose.
(a) The purpose of this subchapter is to insure that advertisements for housing and commercial property do not include words, phrases, symbols, and the like, which violate the advertising provisions of the act.
(b) Section 45.192 (relating to affirmative defenses) contains affirmative defenses which will preclude a finding of a willful and knowing violation of the advertising provisions of the act.
(c) This subchapter implements the statutory mandate of section 9.1(b) of the act (43 P. S. § 959.1(b)).
§ 45.162. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, which are identical to those found in section 4 of the act (43 P. S. § 954):
Act--The Pennsylvania Human Relations Act (43 P. S. §§ 951--963).
Advertisement or advertising--See 43 P. S. § 954(3).
Advertiser--See 43 P. S. § 954(aa).
Housing accommodation--See 43 P. S. § 954(i).
Housing for older persons--See 43 P. S. § 954(w).
Person--See 43 P. S. § 954(a).
Personal residence--See 43 P. S. § 954(k). This term applies to any ''person'' as defined in this section.
§ 45.163. General rules.
The prohibited words and phrases in § 45.182 (relating to words to be avoided) are unlawful when used in housing advertisements. In addition to those words and phrases, any word or phrase that is commonly under- stood to be offensive to a group of people in a protected class also violates the act.
PROHIBITED USAGES § 45.171. Race/color/national origin.
It is unlawful to advertise a limitation, preference or discrimination on account of race, color or national origin. Examples include the use of:
(1) Any color to describe a group of people--for example, white, brown, red, black or yellow.
(2) Any nationality or race to describe a group of people--for example, Caucasian, Negroid, Chinese, Asian Immigrant, French Hawaiian, Arab, Oriental, African-American, Irish, and the like.
(3) Landmarks or organizational locations which are indicative of a particular nationality or race, unless all of the landmarks in the area are noted--for example, if proximity to a specific place associated with a particular ethnic group is noted as a directional landmark, reference should be made to all other nearby comparable facilities of interest to other groups.
(4) Code words which are recognizable in a particular neighborhood as connoting neighborhoods that restrict certain races or ethnic groups.
§ 45.172. Familial status/age.
(a) It is unlawful to advertise a preference, limitation or discrimination against families with children in the household or against persons 40 years of age or older. Examples include, the following:
(1) The use of any phrase which notes a preference, limitation or discrimination for adults, couples or singles or families without children--for example, ''adult atmosphere,'' ''mature adults preferred,'' ''great for retired couple or couple just starting out,'' ''adult/family sections,'' ''no kids/pets okay,'' ''couples only,'' ''ideal for singles,'' ''adult community'' or ''suitable for one or two adults.''
(2) The use of any colloquialisms which imply the same as those in paragraph--for example, paragraph (1) ''empty nesters,'' ''honeymooners'' or ''swinging singles.''
(3) The listing the number of children allowed.
(b) Not withstanding the prohibitions in subsection (a), It is not unlawful to:
(1) List the size and number of rooms or bedrooms.
(2) Indicate that the housing meets the requirements for ''housing for older persons'' as defined in section 4 of the act (43 P. S. § 954). A publisher may rely on the advertisers written representations of such, unless the publisher has reason to believe otherwise.
(3) To advertise a preference against children and advertise age restrictions when the housing accommoda- tions qualifies as ''housing for older persons'' as defined in section 4 of the act.
§ 45.173. Disability.
(a) It is unlawful to advertise a preference, limitation or discrimination against persons with disabilities or to advertise that the property is not accessible.
(b) It is not unlawful to describe housing as accessible to persons with disabilities.
§ 45.174. Religion.
(a) It is unlawful to advertise a preference, limitation or discrimination on the basis of religion. Examples include:
(1) The use of any religious denomination--for example, Christian, Jew, Muslim or Buddhist.
(2) Phrases such as ''surround yourself with Christians.''
(3) The use of a particular landmark or location which is indicative of a particular religion.
(b) Notwithstanding the prohibitions in subsection (a), it is not unlawful for any religious or denominational institution or organization or any charitable or educational organization which is operated, supervised or controlled by or in connection with a religious organization or any bona fide private or fraternal organization to:
(1) Advertise a preference to persons of the same religion or denomination or to members of the private or fraternal organization.
(2) Advertise that the making of the selection is calculated by the organization to promote the religious princi- ples or the aims, purposes or fraternal principles for which it is established or maintained.
§ 45.175. Sex.
(a) It is unlawful to advertise any preference, limitation or discrimination on the basis of sex. Examples include ''males only need apply,'' ''professional male preferred'' or ''perfect for single female.''
(b) Notwithstanding the prohibitions in subsection (a), it is not unlawful to:
(1) Advertise a preference based on sex in the rental or leasing of housing accommodations in single-sex dormitory.
(2) Advertise a preference based on sex in the rental or leasing of housing accommodations for rooms in one's personal residence in which common living areas are shared.
LIST OF WORDS OR PHRASES TO AVOID § 45.181. List.
The list of words in § 45.182 (relating to words to be avoided) does not contain every possible word and phrase that may violate the act. Its purpose is to provide as complete a list as possible. For example, while many nationalities, types of disabilities and races are mentioned, the list is not inclusive. Any word indicating ancestry, race, color, religion or disability is equally prohibited in the context of real estate advertisements. The list will provide guidance on how to recognize the type of language that may be violative of the act. When the context of the word or phrase is key to its possible unlawful meaning that will be noted.
§ 45.182. Words to be avoided.
(a) It is unlawful to use the following words or phrases in housing advertisements unless used in a clearly nondiscriminatory context such as ''white cabinets'' or ''french doors.'' The list is neither intended nor reasonably able to be all inclusive. It is also unlawful to use words or phrases not appearing on the list, but which are used in a context which may reasonably be interpreted as indicating an unlawful discriminatory intent.
Able-bodied
Adult--If the housing is ''housing for older persons'' as defined by the Federal Fair Housing Act (42 U.S.C.A. §§ 3601--3619 and 3631) and the act, it is appropriate to say so.
(i) A newspaper/publisher may publish an advertisement for housing, and be held harmless for liability for an advertisement which uses the terms ''senior housing,'' ''senior community,'' ''retirement community,'' if the advertiser provides a statement formally, in writing, to the newspaper/publisher that the property being advertised meets the requirements for housing for older persons as defined in the act.
(ii) Equivalent phrases referring to persons 55 and 62 and older such as ''adult community, 55 and over,'' ''adult community, 62 and over,'' ''adult 55+,'' ''adult 62+'' to describe housing for older persons, will also be acceptable.
(iii) The term ''adult'' alone or with terms that do not meet housing for older persons requirements will remain unlawful terms as a description of housing for older persons.
African-American
Asian
American
Ancestry (any)
Black
Blind
BuddhistCatholic
Caucasian
Chicano/Chicana
Child/children--Restrictions, unless ''housing for older persons.''
Chinese
Christian
Church, near
Color (any when used to describe persons)
Colored
Couple
CrippledDeaf
Disability (any)--It is acceptable to describe housing as accessible to persons with disabilities. It is not acceptable to attempt to limit the housing to certain persons by stating that it is not accessible.
DisabledEmpty nester
Ethnic neighborhood
Ethnic group (any)Foreigners
Handicapped
Hindi
HispanicIdeal for. . .(a type of person)
Immigrants
Independently, capable of livingIndian
Integrated
Interracial
IrishJew/Jewish
Latino/Latina
Mentally handicapped, ill, retarded
Mexican-American
Middle Eastern(er)
Minority
Mixed community
Mormon
Moslem
Mosque, near
MuslimNationality (any)
NewlywedsParish, near
Perfect for (a type of person)
Polish
Prefer
Protestant
Puerto RicanRace (any, when used to describe a person)
Religion (any, when used to describe persons)
RetardedRetired persons, retirees--If it is ''housing for older persons,'' use that phrase, as many people who are retired may not qualify for housing for older persons while many people still working may in fact be eligible for housing for older persons.
Segregated
Senior--Use ''housing for older persons''. See note under adult and retired persons. Many people who do not consider themselves senior may be eligible for housing for older persons.
Suitable for
Synagogue, nearTemple, near
White
Young
Youthful(b) Any of the words in subsection (a) may be used if they are part of an address. For example, Poplar Church Road, Lutheran Street, Churchville, Black Ridge or Indian Hills, and the like, are permissible.
ADDITIONAL REQUIREMENTS § 45.191. Advertisements.
It is unlawful to advertise any discriminatory preference or limitation, even if the property is otherwise exempt from coverage under the act.
§ 45.192. Affirmative defenses.
It shall be an affirmative defense precluding a finding that a housing advertiser has knowingly and wilfully violated the act and this subchapter if the housing advertiser has complied with one of the following:
(1) Attempted, in good faith, to comply with the list and specific examples of impermissible housing advertisements described in this subchapter.
(2) Complied with a written advisory of the Commission concerning what constitutes appropriate housing advertisements. The Commission will maintain the written advisory on file and provide a copy of the advisory to the advertiser.
(3) Made reasonable efforts in good faith to comply with the act.
§ 45.193. Good faith efforts.
An advertiser will be deemed to have acted in good faith if the advertiser complies with one or more of the following:
(1) As to an advertisement for ''housing for older persons,'' if the advertiser produces a signed written statement by a housing provider which states that the facility or community complies with the requirements of the housing for older persons exemption and the adver- tiser has no actual knowledge that the facility or community is not actually eligible for the exemption.
(2) If the word or phrase complained of is in compliance with the list in § 45.182 (relating to words to be avoided) and is not, on its face, discriminatory within the context of the advertisement.
(3) If the advertiser produces a written Commission advisory that the language complained of is legal, within the same context in which the advertiser requested the opinion from the Commission.
§ 45.194. Federal regulations.
Federal regulations published by the Department of Housing and Urban Development, regarding housing ad-vertisements in areas of concurrent jurisdiction, shall preempt anything to the contrary in this subchapter.
[Pa.B. Doc. No. 99-1182. Filed for public inspection July 23, 1999, 9:00 a.m.]
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