CONTRACTUAL AGREEMENT
§ 49.101. Nondiscrimination clause.
(a) Every State contract as defined in § 49.1 (relating to definitions) shall contain a nondiscrimination clause barring discrimination in employment because of race, color, religious creed, national origin, ancestry, sex or age.
(b) Every State contract between a Commonwealth agency engaged in granting financial assistance, including but not limited to State loans or State guarantees of student loans, and a bank, banking institution or other organization shall contain a nondiscrimination clause barring discrimination in employment because of race, color, religious creed, national origin, ancestry, sex or age.
(c) Every State contract for the deposit of Commonwealth funds in a bank, banking institution or trust company shall, upon the approval of the Board of Finance and Revenue, contain a nondiscrimination clause barring discrimination in employment because of race, color, religious creed, national origin, ancestry, sex or age.
(d) The nondiscrimination clause to be incorporated into every contractual agreement or other arrangement shall be in the following form:
NONDISCRIMINATION CLAUSE
During the term of this contract, Contractor agrees as follows:
1. Contractor shall not discriminate against any employe, applicant for employment, independent contractor, or any other person because of race, color, religious creed, ancestry, national origin, age, or sex. Contractor shall take affirmative action to ensure that applicants are employed, and that employes or agents are treated during employment, without regard to their race, color, religious creed, ancestry, national origin, age, or sex. Such affirmative action shall include, but is not limited to, the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training. Contractor shall post in conspicuous places, available to employes, agents, applicants for employment and other persons, a notice to be provided by the contracting agency setting forth the provisions of this nondiscrimination clause.
2. Contractor shall in advertisements or requests for employment placed by it or on its behalf state all qualified applicants will receive consideration for employment without regard to race, color, religious creed, ancestry, national origin, age, or sex.
3. Contractor shall send each labor union or workers’ representative with which it has a collective bargaining agreement or other contract or understanding, a notice advising said labor union or workers’ representative of its commitment to this nondiscrimination clause. Similar notice shall be sent to every other source of recruitment regularly utilized by Contractor.
4. It shall be no defense to a finding of a noncompliance with Contract Compliance Regulations issued by the Pennsylvania Human Relations Commission or this nondiscrimination clause that Contractor had delegated some of its employment practices to any union, training program, or other source of recruitment which prevents it from meeting its obligations. However, if the evidence indicates that the Contractor was not on notice of the third-party discrimination or made a good faith effort to correct it, such factor shall be considered in mitigation in determining appropriate sanctions.
5. Where the practices of a union or any training program or other source of recruitment will result in the exclusion of minority group persons, so that Contractor will be unable to meet its obligations under the Contract Compliance Regulations issued by the Pennsylvania Human Relations Commission or this nondiscrimination clause, Contractor shall then employ and fill vacancies through other nondiscriminatory employment procedures.
6. Contractor shall comply with the Contract Compliance Regulations of the Pennsylvania Human Relations Commission, 16 Pa. Code Chapter 49 and with all laws prohibiting discrimination in hiring or employment opportunities. In the event of Contractor’s noncompliance with the non-discrimination clause of this contract or with any such laws, this contract may, after hearing and adjudication, be terminated or suspended, in whole or in part, and Contractor may be declared temporarily ineligible for further Commonwealth contracts, and such other sanctions may be imposed and remedies invoked as provided by the Contract Compliance Regulations.
7. Contractor shall furnish all necessary employment documents and records to, and permit access to its books, records and accounts by, the contracting agency and the Human Relations Commission, for purposes of investigation to ascertain compliance with the provisions of the Contract Compliance Regulations, pursuant to § 49.35 (relating to information concerning compliance by contractors). If Contractor does not possess documents or records reflecting the necessary information requested, it shall furnish such information on reporting forms supplied by the contracting agency or the Commission.
8. Contractor shall actively recruit minority subcontractors or subcontractors with substantial minority representation among their employes.
9. Contractor shall include the provisions of this nondiscrimination clause in every subcontract, so that such provisions will be binding upon each Subcontractor.
10. The terms used in this nondiscrimination clause shall have the same meaning as in the Contract Compliance Regulations issued by the Pennsylvania Human Relations Commission, 16 Pa. Code Chapter 49.
11. Contractor obligations under this clause are limited to the Contractor’s facilities within Pennsylvania, or, where the contract is for purchase of goods manufactured outside of Pennsylvania, the facilities at which such goods are actually produced.
Notes of Decisions Injunction
A preliminary injunction against the enforcement of certain paragraphs of the nondiscrimination clause cannot be granted if the court does not find that immediate and irreparable harm would result from the enforcement, or if the court errs in its finding that immediate and irreparable harm would result. Hospital Association of Pennsylvania v. Department of Public Welfare, 433 A.2d 450, 455 (Pa. 1981).
The enforcement of the provisions of paragraph 9 of the nondiscrimination clause would not necessarily result in immediate and irreparable harm by requiring contractors to reduce their previously oral agreements to writings which include the nondiscrimination clause, since there is no statutory or regulatory requirement for such reduction to writing; the fact that almost all of the original complaining contractors are complying with paragraph 9 further supports the conclusion that there is no immediate and irreparable harm. Hospital Association of Pennsylvania v. Department of Public Welfare, 433 A.2d 450 (Pa. 1981).
Cross References This section cited in 4 Pa. Code § 68.61 (relating to nondiscrimination clause; compliance prequalification); 16 Pa. Code § 49.1 (relating to definitions); and 16 Pa. Code § 49.36 (relating to compliance review).
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