§ 41.72. Interpretations regarding advertisers and publishers.
(a) Advertisement and notices relating to employment or union membership which state or imply a preference, limitation, specification or discrimination are illegal. The use of a word, term, phrase or expression in an employment notice or advertisement which tends to influence, persuade or dissuade, encourage or discourage, attract or repel a person because of race, color, religious creed, ancestry, age, sex or national origin shall be considered an unlawful discriminatory activity on the part of the person causing the notice or advertisement to be published and on the part of any publisher printing the notice or advertisement.
(b) An otherwise unlawful employment notice or advertisement shall be deemed lawful if the Commission has granted a bona fide occupational qualification interpretation under this section to the person or persons causing the notice or advertisement to be published. A ‘‘bona fide occupational qualification interpretation’’ for the purposes of this section means the authorization of an otherwise discriminatory employment qualification or requirement for the purposes of a specific employment notice or classification. The interpretation applies only to the particular notice or advertisement in issue and may not be considered otherwise applicable to the hiring or recruiting practices of the employer, employment agency or union requesting the interpretation. Upon receipt of a written notification of interpretation issued by the Commission, a publisher may print the otherwise discriminatory notice or advertisement.
(c) An employer, employment agency or union may request a bona fide occupational qualification interpretation for advertising purposes by calling Commission headquarters, 100 North Cameron Street, Harrisburg, Pennsylvania 17101, (717) 787-4410. If, upon receipt of this oral communication concerning the factual situation at issue, the Commission deems that a bona fide occupational qualification exists, it may so inform the applicant orally, but no interpretation is deemed binding until written notification of the interpretation is received from the Commission. The Commission will maintain records of the requests received by it under this section.
(d) The Commission retains the right to require further written information from an employer, union or employment agency applying for a bona fide occupational qualification interpretation for advertising purposes.
(e) An opinion rendered orally or in writing by the Commission prior to the publication of an advertisement in response to the inquiry shall be binding for the purposes of this section except in those cases in which the applicant has not fully and accurately disclosed the relevant facts regarding the particular position in question.
(f) An appeal from a negative determination by the Commission may be made by submitting a written request and justification thereof to the Commission’s Headquarters office at 100 North Cameron Street, Harrisburg, Pennsylvania 17101. Upon receipt of such appeal the Commission will review its initial denial of bona fide occupational qualification interpretation. Should the Commission, upon review, find the issuance of a bona fide occupational qualification interpretation unwarranted, it will set a conference with the appellant. If no resolution is achieved by means of conference, the Commission will determine a time and place for a hearing to be held before a Commissioner. The determination reached as a result of the hearing will be referred to the Commission for approval and will constitute a final order of the Commission subject to appeal as provided in section 10 of the act (43 P. S. § 960).
(g) A newspaper or other publication will not be in violation of this chapter when it has accepted a specific advertisement in good faith and in reasonable reliance upon the showing by the person placing the advertisement of written notification from the Commission that it has granted a bona fide occupational qualification interpretation for the specific position advertised.
(h) A newspaper or other publication will not be in violation of this section where it has accepted a specific advertisement in good faith and in reasonable reliance upon the representations of the persons placing the advertisement that the person is excluded from the definition of ‘‘employer’’ in section 4(b) of the act (43 P. S. § 954(b)) or that the job in question falls within the exclusions of section 4(c) of the act (43 P. S. § 954(c)) defining employe.
Source The provisions of this § 41.72 adopted July 12, 1974, effective July 13, 1974, 4 Pa.B. 1406.
Cross References This section cited in 16 Pa. Code § 51.52 (relating to securing supplementary interpretations); and 22 Pa. Code § 32.3 (relating to assurances).
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