Luzerne County Council still mulling proposed anti-discrimination ordinance

Luzerne County Council is still pondering a proposed ordinance that would create a county human relations commission to rule on discrimination complaints that extend beyond county government and involve employment, housing, healthcare, education, and establishments offering goods and services to the general public.

A council majority introduced the ordinance on April 14 at the urging of its drafter, Councilwoman Joanna Bryn Smith. The introduction vote was along party lines, with approval from all eight Democrats and no votes from the three Republicans — Harry Haas, John Lombardo, and LeeAnn McDermott.

Council Chairman Jimmy Sabatino said at last week’s meeting he will be seeking a fresh introduction vote at council’s next meeting May 12 because he believes the April 14 introduction violated the state Sunshine Act.

Although Bryn Smith had supplied council with paper copies of her proposed ordinance several months ago, Sabatino said the introduction was not listed on the April 14 meeting agenda to alert the public and prepare council with the ordinance information, he said.

“We were voting on something that wasn’t in front of us at that moment,” Sabatino said. “You could disagree with my interpretation of that, but as the chair, I get to call the balls and strikes there.”

Bryn Smith, an attorney, said she does not believe a Sunshine violation occurred.

Sabatino initially included an ordinance introduction reconsideration vote on last week’s agenda, but said he delayed the decision until council’s next meeting on May 12 to prepare an updated version of the proposed ordinance.

He has suggested some alterations, and Sabatino and Bryn Smith agreed to work together on a consolidated proposal for the May 12 meeting.

Bryn Smith’s proposal defines discrimination as any “exclusion, denial, intimidation, coercion, difference, or segregation in treatment” due to someone’s “membership in a protected class.”

It lists the following under the protected class definition: actual or perceived race, ethnicity, color, religion, creed, national origin or citizenship status, ancestry, sex (including pregnancy, childbirth, and related medical conditions), gender identity, gender expression, sexual orientation, genetic information, marital status, familial status, GED rather than high school diploma, physical or mental disability, relationship or association with a disabled person, source of income, age, height, weight, veteran status, use of guide or support animals and/or mechanical aids, or domestic or sexual violence victim status.

If the county commission deemed a complaint within its jurisdiction, it would send a copy to the respondent and require a written response within 60 days, her proposed ordinance said.

A commission investigator would determine if there is probable cause that an unlawful practice has occurred and present findings to the commission for further proceedings, which could include mediation and/or a public hearing. The commission could ultimately issue a cease and desist order or impose other remedies, including restitution or, in “egregious instances,” a fine of up to $500, it said.

Sabatino’s version adds a prohibition of discrimination “based on an individual’s natural hair or protected hairstyle, where such hair or hairstyle does not pose a legitimate health or safety risk or otherwise interfere with the performance of essential job functions.”

Hairstyles include locs, braids, twists, coils, Bantu knots, afros, and extensions, it said.

Employers would not be prohibited from adopting and enforcing “bona fide occupational qualifications” as long as they demonstrate the rule or policy is needed for employee health and safety, adopted for nondiscriminatory reasons, tailored to the applicable position and activity and applied equally to all employees performing the work, it said.

Fines in his proposal would be up to $1,000 for the first violation, $2,000 for a second violation within five years of the first, and $5,000 for a third violation within seven years of the second violation.

Sabatino said after last week’s meeting, his proposal is not set in stone. He said he has been consulting with attorneys and would not include any prohibitions that could be legally challenged.

“We want to make sure it’s perfectly legal, and we’re working within the bounds of all case law,” he said.

Councilwoman Denise Williams said during last week’s meeting she is a “strong supporter and advocate for the LGBTQ community” but believes council should postpone consideration of an anti-discrimination ordinance until the end of this year or early 2027.

Williams said there already is an established process at the state level for filing and addressing discrimination complaints.

She said council “should be deliberate about where it invests its limited time and resources” because the county is facing “several pressing operational and infrastructure challenges that warrant immediate attention,” including responsible economic development, the conditions of roads and bridges, and ongoing staffing shortages and excessive overtime at the county prison, 911, and Children, Youth and Families.

“In my view, these are core government functions and urgent issues that should command our council’s majority focus,” Williams said.

In reply, Bryn Smith said Pennsylvania does not have statewide regulations that prohibit discrimination against “veterans, LGBTQ folks, gig workers, independent contractors, or those who are living with chronic illnesses.”

“So there actually are items in this ordinance that are not handled by the state,” she said.

Bryn Smith also said a county ordinance would “allow us to alleviate a chronic state backlog of discrimination complaints.”

During public comment, Duryea resident Ben Herring said he does not know why some council members are “creating issues.”

The federal government defines protected classes, and the state and federal governments sometimes have different interpretations that prompt litigation, Herring said.

“And then Luzerne County is going to create another commission? You’re going to have three potentially different sets of rules to look into. How does that help us?” Herring said, predicting the extensive categories in the proposed ordinance would lead to numerous complaints, confusion, and weaponization.

Dallas Township resident Beth Mattei spoke in support of the ordinance, saying it is needed because state and federal officials “sometimes have different priorities” that also change.

“When you establish a committee at a local level, you have more control over what happens on a local level with your own folks and your own people,” Mattei said.

If a proposed anti-discrimination ordinance is introduced on May 12, it would require a subsequent public hearing and final council majority approval to take effect.