§ 44.4. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act—The Pennsylvania Human Relations Act (43 P. S. § § 951—963).
Commission—The Human Relations Commission.
Facility—The term includes, but is not limited to, all or any portion of buildings, structures, equipment, roads, walks, parking lots, fixtures and other real or personal property.
Handicapped or disabled person—Includes the following:(i) A person who has or is one of the following:
(A) A physical or mental impairment which substantially limits one or more major life activities.
(B) A record of an impairment.
(C) Regarded as having an impairment.
(ii) As used in subparagraph (i), the phrase:
(A) ‘‘Physical or mental impairment’’ means a physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin, and endocrine or a mental or psychological disorder, such as mental illness, and specific learning disabilities.
(B) ‘‘Major life activities’’ means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
(C) ‘‘Has a record of such an impairment’’ means has a history of or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.
(D) ‘‘Is regarded as having an impairment’’ means has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer or owner, operator or provider of a public accommodation as constituting a limitation; has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment; or has none of the impairments defined in subparagraph (i)(A) but is treated by an employer or owner, operator or provider of a public accommodation as having an impairment.
Nonjob-related handicap or disability—The term includes the following:(i) A handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person applies for, is engaged in, or has been engaged in. Uninsurability or increased cost of insurance under a group or employe insurance plan does not render a handicap or disability job-related.
(ii) A handicap or disability is not job-related merely because the job may pose a threat of harm to the employe or applicant with the handicap or disability unless the threat is one of demonstrable and serious harm.
(iii) A handicap or disability may be job-related if placing the handicapped or disabled employe or applicant in the job would pose a demonstrable threat of harm to the health and safety of others.
Undue hardship—The factors to be considered in determining whether an undue hardship is imposed by the requirement that a reasonable accommodation be made to a person’s handicap or disability include, but are not limited to, the following:(i) The overall size and nature of a business, organization, program or public accommodation, including number of employes, structure and composition of workforce, and number and type of facilities. However, financial capability to make reasonable accommodations shall only be a factor when raised as part of an undue hardship defense.
(ii) Good faith efforts previously made to accommodate similar handicaps or disabilities.
(iii) The extent, nature and cost of the reasonable accommodation needed.
(iv) The extent to which handicapped or disabled persons can reasonably be expected to need and desire to use, enjoy or benefit from the employment or public accommodation which is the subject of the reasonable accommodation in question.
(v) Legal or proprietary interest in the subject of proposed reasonable accommodations including authority to make the accommodations under the terms of a bona fide agreement, such as a lease, governing or describing rights and duties with respect to the subject.
Comment The Commission chose to reject the recommendation of several commentators that ‘‘reasonable accommodation’’ be defined. The term is increasingly used without definition, in the literature of discrimination law, is an evolving concept that changes with the state of technology, and is probably best left to construction on a developmental, case-by-case basis.
The definition of ‘‘handicapped or disabled person’’ is adopted verbatim from the definition of the United States Department of H.E.W.’s section 504 regulations in accordance with the recommendations of most commentators. The Commission is satisfied that the Federal definition avoids the ambiguity commonly complained of with respect to its own earlier definition. The terms ‘‘handicap’’ and ‘‘disability’’ are used interchangeably because that appears to reflect the plain intent of the Legislature. Notwithstanding the suggestions of several commentators, the Commission is not convinced that it is authorized by the act nor that it would be wise to establish various classes of handicapped or disabled persons with different protections depending upon the severity of handicap or disability.
The Commission has satisfied itself that the definition of ‘‘non-job-related handicap or disability,’’ § 44.4, is sufficient to overcome the criticism of many commentators that the chapter does not adequately tie protection from employment discrimination to qualification for employment. Although the Commission has deleted language from earlier proposed regulations specifically limiting the relevancy of collective bargaining agreements in the determination of job relatedness, the Commission remains committed to the well-established principle of law that private contracts, including collective bargaining agreements, are not valid to the extent that their terms violate antidiscrimination or other laws. Section 44.4, relating to conditions which might pose a threat of harm to the handicapped or disabled worker or applicant, is specifically intended to afford the same degree of self-determination as is available to able-bodied persons. This is considered consistent with the general goal of aiding persons with handicaps or disabilities to be full, independent participants in Pennsylvania life.
Factors relevant to a determination of undue hardship are set forth at § 44.4. However, the Commission emphasizes that the list is not exhaustive and that no single factor should ever be deemed necessarily dispositive.
It should also be noted that while the Commission deems the availability of the undue hardship defense to be necessary for the fair operation of this chapter, it will not be construed so as to develop into a large loophole for avoidance of the purposes of the act. As one thoughtful commentator upon the Commission’s originally proposed regulations noted, places of employment and public accommodation have for many years complied with health, safety, fire codes, etc., without undue hardship. It is not anticipated that compliance with this chapter will impose any greater hardship than those codes.
In response to suggestions from some commentators the Commission has deleted the ‘‘size of budget’’ language that appeared as an undue hardship factor in earlier proposed regulations and at § 44.4 has clarified that financial capability will be a factor appropriately considerable only when raised as a defense.
In connection with the fourth undue hardship factor, at § 44.4, it will generally be presumed that handicapped or disabled persons need and desire to use, enjoy, and benefit from employment or public accommodations in proportion to their able-bodied counterparts. Failure or nonexistence of previous attempts to use, enjoy or benefit will usually be deemed irrelevant because of the likelihood that such failure is attributable to historical discrimination and negative societal stereotyping rather than to lack of interest.
The Commission considers it distinctly inappropriate to exempt a lessee or other non-owner of facilities from reasonable accommodation obligations. The General Assembly can hardly be presumed to have intended that a factory owner-employer owes significant obligations of reasonable accommodation to handicapped or disabled employes from which he or she would be exempt if the factory were controlled by virtue of a long-term lease. However, to counter-balance any unduly harsh effects of this position, the Commission has designated proprietary rights, at § 44.4, as a factor relevant to the determination of undue hardship. The Commission was persuaded to take this approach in light of the inclusion of nonownership interests in the definition of ‘‘facility’’ under the United States Department of H.E.W.’s regulations to implement section 504 of the 1973 Rehabilitation Act and in light of the availability of tax credits for alterations to unowned facilities to improve accessibility for the handicapped under section 2122 of the Federal Tax Reform Act of 1976.
Section 44.4 shall not necessarily exempt from a charge of unlawful discrimination pursuant to section 5(e) of the act a lessor or any third party who refuses to permit or who interferes with the making of reasonable accommodation.
Notes of Decisions Undue Hardship
Termination of a police officer diagnosed with angina does not violate the State Human Relations Act when his condition prevented him from performing the essential functions of a police officer and the small size of the police department prevented city from making reasonable accommodation for the police officer’s handicap. Shoemaker v. Human Relations Commission, 634 A.2d 772 (Pa. Cmwlth. 1993).
Inability to obtain a position as police officer in city did not render individual handicapped. Pittsburgh v. Human Relations Commission, 630 A.2d 919 (Pa. Cmwlth. 1993).
The fact that a complainant is perceived as having a handicap or disability is sufficient, and it is not necessary for the complainant to further demonstrate that the ‘‘perceived’’ disability substantially limits one or more major life activities beyond the employer’s perception. Civil Service Commission of Philadelphia v. Human Relations Commission, 556 A.2d 933, 935 (Pa. Cmwlth. 1989); reversed 591 A.2d 281 (Pa. 1991).
Epilepsy of claimant, who was a urethane utility man, was considered a handicap which was job related because it posed a demonstrable threat to the health and safety of others. Murphy v. Cartex Corp., 546 A.2d 1217 (Pa. Super. 1988).
The Pennsylvania Human Relations Act (43 P. S. § 955(a)) and the regulations promulgated thereunder were impliedly preempted to the extent that Federal law establishes particular standards for mental and physical qualifications for security personnel at nuclear power plants. Burns Internship Security Services, Inc. v. Human Relations Commission, 547 A.2d 818 (Pa. Cmwlth. 1988).
An employer who reasonably relies on expert medical opinion stating that an applicant suffers from a job-related handicap has a good-faith defense under this section to a handicap discrimination claim even if employe’s experts subsequently controvert this opinion. Action Industries, Inc. v. Human Relations Commission, 518 A.2d 610 (Pa. Cmwlth. 1986); appeal denied 531 A.2d 433 (Pa. 1987).
The definition of handicapped or disabled person, which includes a person who is regarded as having an impairment in addition to persons with an actual impairment or having a record of an actual impairment, is not an improper extension of the Human Relations Act nor is it at odds with fundamental principles of law. State Police v. Human Relations Commission, 457 A.2d 584 (Pa. Cmwlth. 1983).
Cross References This section cited in 16 Pa. Code § 44.13 (relating to equipment modification); 16 Pa. Code § 44.15 (relating to handicaps or disabilities not presently but potentially job-related); and 16 Pa. Code § 45.4 (relating to definitions).
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