Pennsylvania Code › Title 16 - COMMUNITY AFFAIRS › Part II - Governor's Office › Subpart A - Human Relations Commission › Chapter 41 - PRELIMINARY PROVISIONS › Subchapter A - GENERAL PROVISIONS › BONA FIDE OCCUPATIONAL QUALIFICATIONS › Section 41.72 - Interpretations regarding advertisers and publishers

Current through Register Vol. 54, No. 28, July 13, 2024
(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.
This section cited in 16 Pa. Code §
														51.52 (relating to securing
							 supplementary interpretations); and 22 Pa. Code § 32.3 (relating to
							 assurances).