RULES AND REGULATIONS
Title 16--COMMUNITY AFFAIRS
HUMAN RELATIONS COMMISSION
[16 PA. CODE CH. 45]
Housing Accommodations/Commercial Property
[30 Pa.B. 3434] The Human Relations Commission (Commission) has adopted amendments to Chapter 45 (relating to housing accommodations), pertaining to advertising, to read as set forth in Annex A. In compliance with and under the authority of the act of June 25, 1997 (P. L. 326, No. 34) (Act 34), guidelines and a statement of policy were published earlier.
Purpose and Background
The purpose of this rulemaking is to advise the public of words, phrases, symbols and the like which are impermissible under the Pennsylvania Human Relations Act (43 P. S. §§ 951--963) (act) when used in housing advertisements. In addition, it is 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 the act. 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. Words indicating ancestry, race, color, religion or disability are equally prohibited in the context of real estate advertise- ments. 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.
This rulemaking also contains examples of types of conduct which constitute reasonable efforts to comply with the advertising provisions of the act so that a finding of knowing and willful violation of those portions of the PHRA is precluded.
Notice, Comments and Commission Responses
Notice of the proposed rulemaking was published at 29 Pa.B. 3895 (July 24, 1999) with a 60 day public review and comment period. As a result of this publication, the Commission received two public comments, one from the Pennsylvania Association of Realtors (PAR) and one from the Pennsylvania Newspaper's Association (PNA). In addition to the public comments, the Independent Regulatory Review Commission (IRRC) and the House State Government Committee made a number of comments. The Senate Labor and Industry Committee allowed its 20-day comment period to pass without comment or objection to the proposed rulemaking. The comments from IRRC and the House State Government Committee involved some of the same areas of concern raised by PAR and PNA. The Commission's responses to the various comments, from all sources, are set forth as follows.
1. Section 45.171--Race/Color/National Origin.
a) IRRC and PNA requested further clarification regarding whether a reference to a property located in an area recognized as a community landmark, such as, ''Chinatown'' or ''Little Italy'' is prohibited. The Commission believes that as long as the named area is in fact a recognized broad geographical landmark, and not simply a term being used for exclusionary purposes, its use is not unlawful. This has been added to the appropriate section.
b) IRRC and PNA questioned whether ethnic terms can be used to describe a property's unique features, such as Oriental garden and Kosher restaurant. If the description is used in connection with the property that is being sold and not as a landmark for other property, that description is acceptable. This has been included in the final rulemaking.
c) IRRC and PNA requested guidance on the term ''code words.'' While it is a difficult term to further define as codes are by definition unique to each usage, further definition has been added to the appropriate section.
2. Section 45.172--Familial Status/Age.
IRRC suggested that a typographical error existed in subsection (a)(3), in that the word ''The'' which appears before ''listing'' needed to be deleted. This has been done. Further review indicated that the second use of the word ''against'' in the first sentence was confusing and was removed.
3. Section 45.181--List.
IRRC commented that the language in this section was nonregulatory, and should either be changed or placed in the purpose section. The language has been moved to the purpose section.
4. Section 45.182--Words to be Avoided (now adopted as § 45.181).
a) IRRC commented that information is repeated from § 45.181 and should be removed. This was done.
b) IRRC also commented that the explanatory language after ''senior'' is confusing and should mirror the structure of the explanatory language that follows ''adult.'' This has been done.
5. Section 45.191--Advertisements.
IRRC and PNA sought clarification as to the legality of advertisements for out-of-State property published in Pennsylvania newspapers. Section 45.191(c) was added to the regulations to make it clear that the advertisements in Pennsylvania newspapers are covered by the act, regardless of where the property advertised is located.
6. Section 45.192--Affirmative Defenses.
a) IRRC commented that the term ''housing advertiser'' should be replaced with ''advertiser'' since this was the defined term. This has been done.
b) IRRC commented that the affirmative defense, and the good faith effort provision in § 45.193 should be clarified by outlining the process by which advertising advisories are obtained. This has been done.
7. Section 45.193--Good Faith Efforts.
IRRC suggested cross referencing the housing for older persons exemption to the Federal Fair Housing Act (42 U.S.C.A. §§ 3601--3619). This has been done.
8. Both IRRC and the House State Government Committee commented that Act 34 nullified § 45.8(a) and 45.13(f) (relating to advertisements; and to exemptions) of the current regulations. The Commission has thus deleted both subsections in this final-form regulations.
9. The PNA commented that the word ''student'' has been determined to be a word to avoid because it could indicate a preference for young persons to the exclusion of older persons or families with children. The Commission believes that the use of the word ''student'' is not discriminatory in that students come in all protected classes. If a realtor or landlord is discriminating against a protected class, that action will be unlawful even though the advertisement itself may not be. Therefore, we have not added the word ''student'' to the list.
10. The PNA and the House State Government Committee recommended that the word list be updated on a regular basis or on a 6-month basis. The Commission does not believe that it will be necessary to do a formal review of the list every 6 months. The Commission has done and will continue to do internal reviews, and over the past 2 years, it has not found any significant changes. If the Commission finds that new phrases or words are being used that should be included on our list, the Commission would immediately begin the regulatory process to add these words to the current list.
11. The PNA and the House State Government Committee both commented on the need for clarification of shared housing advertisements. The PNA stated that it was unclear whether an advertiser may lawfully describe the circumstances of the shared housing arrangement. For example, ''female and child looking for female roommate,'' ''female and son looking for female roommate'' and ''female and teenager looking for roommate'' have all been approved by the Commission. With respect to discrimination based on sex, the advertising provisions of the Commission do not apply to one's personal residence. The advertisements focus primarily on the sex of the head of household. Any possible discriminatory effect on the basis of familial status or age is de minimis. The Commission therefore believes that the advertising phrases cited previously do not violate the act. Thus, the Commission has chosen to leave the section as originally proposed.
12. The PNA commented that there should be a regulation on human model advertisements. This has been added in § 45.191(c).
13. The PNA commented that the right of advertisers to note a preference in an ad for a nonsmoker or nonpet owner should be included in this rulemaking. They also commented that the Commission should state whether an ad might discriminate on the basis of a nonprotected classification. This rulemaking is intended as a basis for determining unlawful advertisements. The Commission believes that to begin to include words and phrases that are legal would create a document more cumbersome than already exists and has therefore chosen to maintain current language.
14. The PAR commented that it supports the rulemaking if after a written advisory of approval by the Commission is received, the advertisement is found in violation of the proposed rule, the realtor is not liable and therefore not subject to any penalty. First, it must be pointed out that the rulemaking only binds the Commission and has no effect whatsoever on the Department of Housing and Urban Development's (HUD) enforcement of Federal fair housing law. Title VIII of the Federal Fair Housing Act covers the same areas as the act and HUD may enforce the Federal act as it sees fit. It is correct that compliance with a written advisory of the Commission will preclude a finding by the Commission of a knowing and willful violation of the advertising provisions of the act.
Paperwork Requirements:
No additional routine paperwork will be required by this final-form rulemaking.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), of July 13, 1999, the Commission submitted a copy of the notice of proposed rulemaking, published at 29 Pa.B. 3895 to IRRC and to the Chairpersons of the House and Senate Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing these final-form regulations, the Commission has considered all comments from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P.S. § 745.5(d)), on April 12, 2000, these final-form regulations were deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 11, 2000, and approved the final-form regulations.
Fiscal Impact
The Commission believes that the final-form regulations will not result in additional cost to the Commission or to the general public. Additional costs which arise were created by the Commission and not these final-form regulations.
Effective Date
The final-form regulations shall take effect upon publication in the Pennsylvania Bulletin.
Order
The Commission, acting under the authorizing statute, orders that:
(a) The regulations of the Commission, 16 Pa. Code Chapter 45, are amended by:
(1) Deleting §§ 45.101--45.103, 45.121--45.126, 45.141, 45.142 and 45.151--45.154;
(2) Amending §§ 45.8 and 45.13; and
(3) Adding §§ 45.161--45.163, 45.171--45.175, 45.181 and 45.191--45.194 to read as set forth in Annex A.
(Editor's Note: Sections 45.8 and 45.13 were not published with the proposed rulemaking.)
(b) The Director shall submit this order and Annex A to the Office of the Attorney General for approval as to form and legality as required by law.
(c) The Director shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) The regulations shall take effect upon publication in the Pennsylvania Bulletin.
HOMER C. FLOYD,
Executive Director(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 30 Pa.B. 2688 (May 27, 2000).)
Fiscal Note: Fiscal Note 52-10 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 16. COMMUNITY AFFAIRS
PART II. GOVERNOR'S OFFICE
Subpart A. HUMAN RELATIONS COMMISSION
CHAPTER 45. HOUSING ACCOMMODATIONS/COMMERCIAL PROPERTY
Subpart A. REGULATIONS § 45.8. Advertisements.
(a) It is unlawful for a person to indicate in advertising that the housing that the person is offering for sale or lease is exempt from the act or to offer a preference, limitation or discrimination in the advertising of that exempt property.
(b) This section does not restrict the inclusion of applicable age and familial status requirements in advertisments of dwellings which are intended and operated for occupancy by older persons and which constitute housing for older persons as defined by § 45.4 (relating to definitions).
§ 45.13. Exemptions.
(a) Section 5(h) of the act (43 P. S. § 955(h)) does not prohibit the following:
(1) A religious or denominational institution or organization, or a charitable or educational organization which is operated, supervised or controlled by or in conjunction with a religious organization, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose, to persons of the same religion or denomination, or from giving preference to these persons, unless membership in the religion is restricted because of race, color or national origin.
(2) A private club or fraternal organization, not in fact open to the public, which, incident to its primary purpose, provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of the lodgings to its members or from giving preference to its members.
(b) Nothing in section 5(h) of the housing provisions of the act, regarding age or familial status, applies with respect to housing for older persons.
(c) With the exception of the exemption for dwellings which constitute housing for older persons as defined by § 45.4(f) (relating to definitions), the exemptions to the act are not applicable to real estate firms, brokers, agents, sales people or an individual employed by any of them, when acting on behalf of them.
(d) The exemption for housing for older persons in which the housing is solely occupied by persons 62 years of age or older shall be met if all of the occupants are 62 years of age or older.
(e) In determining whether the exemption for housing for older persons in which the housing is provided under a Federal or State program is met, the Commission will adopt the finding of the Secretary of the Department of Housing and Urban Development as to whether the housing is designed or operated to assist elderly persons.
§§ 45.101--45.103. (Reserved).
§§ 45.121--45.126. (Reserved).
§ 45.141. (Reserved).
§ 45.142. (Reserved).
§§ 45.151--45.154. (Reserved).
GENERAL § 45.161. Purpose.
(a) The list of words in § 45.181 (relating to words to be avoided) does not contain every possible word and phrase that may violate the act. The purpose of this section is to provide as complete a list as possible.
(1) 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 the real estate advertisements.
(2) The list will provide guidance on how to recognize the type of language that may be violative of the act.
(3) When the context of the word or phrase is key to its possible unlawful meaning that will be noted.
(b) 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.
(c) 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.
(d) 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 § 45.181 (relating to words to be avoided) are unlawful when used in housing advertisements. In addition to those words and phrases, a word or phrase that is commonly understood 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. Code words are facially neutral words and phrases which are used in a particular circumstance which are understood to mean an illegal preference.
(5) Neighborhood and geographical landmarks such as ''chinatown'' and ''little Italy'' are acceptable terms if the description is used in connection with the property being sold or rented and not for exclusionary purposes.
(6) Phrases such as ''oriental garden'' and ''kosher restaurant'' are acceptable when used as a description of the property being sold or rented, not as a landmark for other property.
§ 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 subsection (a)(1) for example--''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) Advertise a preference against children and advertise age restrictions when the housing accommodation 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 the following:
(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 advertise:
(1) A preference to persons of the same religion or denomination or to members of the private or fraternal organization.
(2) That the making of the selection is calculated by the organization to promote the religious principles 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 advertise a preference based on sex in the rental or leasing of housing accommodations as follows:
(1) In single-sex dormitory.
(2) For rooms in one's personal residence in which common living areas are shared.
LIST OF WORDS OR PHRASES TO AVOID § 45.181. 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 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
Buddhist
Catholic
Caucasian
Chicano/Chicana
Child/children--Restrictions, unless housing for older per-
sons
Chinese
Christian
Church, near
Color (any when used to describe persons)
Colored
Couple
Crippled
Deaf
Disability (any)--It is acceptable to describe housing as
accessible to persons with disabilities. It is not accept-
able to attempt to limit the housing to certain persons
by stating that it is not accessible.
Disabled
Empty nester
Ethnic neighborhood
Ethnic group (any)
Foreigners
Handicapped
Hindi
Hispanic
Ideal for . . . (a type of person)
Immigrants
Independently, capable of living
Indian
Integrated
Interracial
Irish
Jew/Jewish
Latino/Latina
Mentally handicapped, ill, retarded
Mexican-American
Middle Eastern(er)
Minority
Mixed community
Mormon
Moslem
Mosque, near
Muslim
Nationality (any)
Newlyweds
Parish, near
Perfect for (a type of person)
Polish
Prefer Protestant
Puerto Rican
Race (any, when used to describe a person)
Religion (any, when used to describe persons)
Retarded
Retired persons, retirees--If it is ''housing for older
persons,'' as defined by the Federal Fair Housing Act
and the act, 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,'' as defined by the
Federal Fair Housing Act and the act. 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, near
Temple, 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.
(a) Advertisements published within this Commonwealth are covered by this chapter regardless of the locality of the property or financial institution.
(b) Except to the extent allowed by §§ 45.172(b), 45.174(b) and 45.175(b) (relating to familial status/age; religion; and sex), it is unlawful to advertise any discriminatory preference or limitation, even if the property is otherwise exempt from coverage under the act.
(c) When an advertising campaign includes pictures of individuals or families, the advertiser has the responsibility to alternate the picture from time to time to include a variety of protected classes in the advertisement.
§ 45.192. Affirmative defenses.
It shall be an affirmative defense precluding a finding that an advertiser has knowingly and willfully violated the act and this subchapter if the 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) 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. To obtain an advisory, the advertiser shall telephone the Commission Housing Division at (717) 787-4055 or write to the Commission, 101 S. Second Street, Suite 300, P. O. Box 3145, Harrisburg, Pennsylvania 17105-3145, Attn: Housing Division, and indicate the language of the advertisement in question. Appropriate Commission housing staff will inform the advertiser of its decision on the ad and follow-up with a written advisory within 10 working days.
(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,'' as defined by the Federal Fair Housing Act (42 U.S.C.A. §§ 3601--3619) and the act, 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 advertiser 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, obtained by use of the procedure in § 45.192(2) (relating to affirmative defenses), 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 advertisements in areas of concurrent jurisdiction, preempt anything to the contrary in this subchapter.
[Pa.B. Doc. No. 00-1157. Filed for public inspection July 7, 2000, 9:00 a.m.]
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