As the number of handicap discrimination claims filed each year increases, more and more different types of businesses are being subject to these claims. This has expanded beyond the traditional claims by employees, to claims by customers and suppliers, including parents of school children.
In Pennsylvania, many discrimination claims are filed with the Pennsylvania Human Relations Commission, pursuant to the Pennsylvania Human Relations Act ("PHRA"). One aspect which is frequently acknowledged is the usual requirement that the facility must be one of public accommodations, resort or amusement.
PHRA §955(i)(1) provides, in part, as follows:
It shall be an unlawful discriminatory practice . . .
- For any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any public accommodation, resort or amusement to:
- Refuse, withhold from, or deny to any person because of his . . . handicap or disability . . . either directly or indirectly, any of the accommodations, advantages, facilities, or privileges of such public accommodation, resort or amusement.
Section 954(1) of the Act defines "public accommodation," in pertinent part, as "... any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to . . . public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under supervision of the commonwealth . . . but shall not include any accommodations which are in their nature distinctly private." Thus, the plain language of the Act excludes private schools and/or institutions from its purview.
In Roman Catholic Archdiocese of Philadelphia, et al. v. Commonwealth, et al., 548 A.2d 328 (Pa. Cmwlth. 1988), the Commonwealth Court ruled that Catholic schools were not "public accommodations" as defined by the PHRA. The Court reached its conclusion despite the facts that the Archdiocese accepted children who are not Catholic. The Commonwealth Court reasoned that the PHRA was promulgated to prevent discrimination only in businesses, schools, and institutions that are open to the public and/or receive public funding. The Commonwealth Court concluded, therefore, that Catholic schools, even schools which accept children who are not Catholic, would not fall within the purview of the Act.
By analogy, therefore, any school which is "distinctly private in nature," and receives no local, state, or federal funding, does not constitute a "public accommodation" within the purview of the PHRA. As such, the plain language of the PHRA bars any charge of discrimination against such schools.
The "distinctly private" in nature defense to claims by the general public is often overlooked, and should be constantly examined in any discrimination case.
If you have any questions or desire to discuss any matters concerining this article or discrimination, labor and employment relations, or school law, please contact Richard B. Sandow at rbs@jgcg.com or David M. Huntley at dmh@jpcg.com.
