Pennsylvania Enacts the CROWN Act: What Employers Need to Know

On November 25, 2025, Gov. Shapiro signed the Creating a Respectful and Open World for Natural Hair (CROWN) Act into law. The new law amends Pennsylvania's anti-discrimination law, the Pennsylvania Human Relations Act (PHRA) in a few important ways:

Broadens the definition of "race" to include hair texture and hairstyles

The PHRA prohibits discrimination based on race, and the definition of "race" now specifically includes "hair texture and protective hairstyles." "Protective hairstyles" include, but are not limited to, "locs, braids, twists, coils, Bantu knots, afros and extensions."

Broadens the definition of "religious creed" to include hairstyles and head coverings

The PHRA prohibits discrimination based on religious creed, and the definition of "religious creed" now specifically includes "head coverings and hairstyles historically associated with religious creeds."

Workplace health and safety rule and BFOQ exception

Employers may still adopt:

• An otherwise valid health and safety rule or policy; or
• Other rule or policy justified as a bona fide occupational qualification (BFOQ). 

However, to establish the exception applies, the employer must demonstrate:

(i) Without the adoption of the rule or policy the health or safety of an employe or other materially connected person may be impaired; 

(ii) The rule or policy is adopted for nondiscriminatory reasons; 

(iii) The rule or policy is specifically tailored to the applicable position and activity; and 

(iv) The rule or policy is applied equally to individuals whose positions fall under the applicable position and activity.  

Effective Date: January 24, 2026

Pennsylvania regs expand antidiscrimination law definition of "sex"

Last time, I wrote about the new regs regarding race discrimination under the Pennsylvania Human Relations Act (PHRA) (and the housing and public accommodations provisions). Guess what? The new regs also address "sex."

You can read the full regs here. Under the new regulations, the term "sex" now includes:

• Pregnancy, including "the use of assisted reproductive technology; the state of being in gestation; childbirth; breastfeeding; the postpartum period after childbirth; and medical conditions related to pregnancy";
• Sex assigned at birth;
• Gender Identity or expression;
• "Affectional or sexual orientation," defined as "male, female, or nonbinarv heterosexuality, homosexuality, bisexuality, or asexuality by inclination, practice. identity, or expression, having a history thereof, or being perceived, presumed, or identified by others as having such an orientation"; and
• "Differences of sex development, variations of sex characteristics, or other intersex characteristics."

Pennsylvania expands definition of "race" in anti-discrimination law

Pennsylvania’s Independent Regulatory Review Commission approved changes to the regulations defining "race" in Pennsylvania's workplace anti-discrimination law, the Pennsylvania Human Relations Act (PHRA). The changes will also impact housing and public accommodations provision, but this is an employment law blog, soooo. Also note that additional changes address sex and sexual orientation, and religious creeds, but more on that later this week...

You can read the actual proposal here. Most notably, the regulations prohibit discrimination on the basis of "ethnic characteristics," "traits associated with race," and "interracial marriage and association."

"Traits associated with race" include "hair texture and protective hairstyles, such as braids, locks, and twists."

"Ethnic characteristics" include "physical characteristics such as skin and hair color, body size, and facial features typical of persons of a particular cultural or social background: linguistic characteristics such as language or dialect; behavioral or cultural characteristics such as religion or customs: environmental characteristics such as living in the same area or region."

Just for good measure, they also threw in, "Hispanic ancestry, national origin, or ethnic characteristics, including, but not limited to, persons of Mexican, Puerto Rican, Central or South American, or other Spanish origin or culture."

Well, at least compensatory and punitive damages are capped in discrimination cases, right? Not so fast, Pennsylvania employers!

What's the worst case scenario in a discrimination claim? In terms of liability, federal discrimination claims under the ADA and Title VII have a statutory cap for compensatory damages (like emotional distress) and punitive damages combined. See, 42 USC s1981a.

It depends on the size of the employer:

• <101 employees: $50,000
• 101 - 200 employees: $100,000
• 201-500 employees: $200,000
• >500 employees: $300,000

In Pennsylvania (and I suspect other jurisdictions as well), plaintiffs can get around that cap by allocating damages to a state discrimination statute.

Not official use.

The PHRA does not allow for punitive damages. Hoy v. Angelone, 720 A.2d 745, 749 (Pa. 1998) But, it allows for unlimited emotional distress damages. Let's say a jury verdict in a sex discrimination case includes:

• $2 million in emotional distress; and 
• $300,000 in punitive damages.

The employer has more than 500 employees. Now, the employer hopes that the $2.3 million gets knocked down to $300,000 (the statutory cap), right! What a relief that would be!

Not so fast! The Court could allocate the emotional
distress to the PHRA claim, and the punitive damages to the Title VII claim. The result would be $2 million for emotional distress under the PHRA, and $300,000 (the statutory cap) in punitive damages under Title VII. Instead of a $300,000 total, the employer is still getting hit with the full $2.3 million total! 

This plaintiff-friendly allocation method received the express approval of the Third Circuit Court of Appeals in Gagliardo v. Connaught Labs., 311 F.3d 565 (3d Cir. 2002). Suddenly, that cap is not quite as useful as many employers think it is.  

Can plaintiffs recover punitive and liquidated damages under the Pennsylvania Human Relations Act?

Can plaintiffs recover punitive and liquidated damages under the Pennsylvania Human Relations Act (PHRA)? That's actually two separate questions. Let's start with the easy one.

Punitive Damages

The Pennsylvania Supreme Court has clearly said that punitive damages are not available under the PHRA. Hoy v. Angelone, 720 A.2d 745 (Pa. 1998).

Liquidated Damages

Liquidated damages are a little murkier. Some statutes expressly provide for liquidated damages. For example, an ADEA plaintiff can recover liquidated damages equal to their back pay (i.e. doubling their back pay award).

Under the case law, liquidated damages under the PHRA seem like a long shot. The gist of the PA Supreme Court's holding in Hoy is that the PHRA provides remedial damages and not punitive damages. Given that liquidated damages are punitive in nature (and not merely remedial), then courts could (and have) conclude that liquidated damages are not available:

[B]oth the Supreme Court and Third Circuit have held, albeit in the context of the ADEA, that liquidated damages are intended to be punitive in nature . . . . Given these conclusions, Plaintiffs are not entitled to the submission of a liquidated damages charge to the jury on their PHRA claims.

Potoski v. Wilkes Univ., No. 3:06-CV-2057, 2010 U.S. Dist. LEXIS 99731, at *8-9 (M.D. Pa. Sep. 22, 2010).

Some courts, however, have adopted more of a we-don't-know so let's wait and see approach:

[A]nother court within the Third Circuit held that the defendant was not entitled to dismissal of the plaintiff's PHRA liquidated damages claim at the early stage of proceedings because no case law established that "liquidated damages are excluded from 'any other legal or equitable relief' expressly authorized in the PHRA." Craig v. Thomas Jefferson University, Civil Action No. 08-4165, 2009 U.S. Dist. LEXIS 57819, 2009 WL 2038147, at *9 (E.D. Pa. July 7, 2009). Because the issue is not as straight forward as Defendants assert and because Defendants' sparse briefing does not sufficiently address matters this Court considers relevant to deciding the issue, we will follow Craig's path of not striking the demand for liquidated damages at the motion to dismiss stage. 

Bellas v. WVHCS Retention Co., 2012 U.S. Dist. LEXIS 128133, *19, 96 Empl. Prac. Dec. (CCH) P44,642, 2012 WL 3961227 (M.D. Pa. September 10, 2012). Even that is hardly a ringing endorsement.

Pennsylvania Superior Court allows whistleblower claim to circumvent PHRA administrative process

Here's an interesting (albeit unpublished) decision from the Superior Court of Pennsylvania: Harrison v. Health Network Laboratories, LP.

The plaintiff alleged that her employer fired her in retaliation for reporting that her supervisor was creating a hostile work environment for non-Indian employees. If you practice law in Pennsylvania, this probably sounds like a classic Pennsylvania Human Relations Act (PHRA) claim. The PHRA prohibits retaliation for protected activity, like reporting discriminatory harassment.

Here's the thing - the plaintiff filed a claim under the Pennsylvania Whistleblower Law (PWL) instead. The PWL prohibits retaliation for a good faith report of "wrongdoing." She claims her employer fired her for reporting the "wrongdoing" of creating a hostile work environment.

The employer argued that the PHRA pre-empts the PWL. The Superior Court rejected this argument primarily because the PHRA pre-dates the PWL. So, the Court concluded that the employee may proceed with her PWL claim.

Why does this matter? It matters because the PHRA requires that plaintiffs exhaust their administrative remedies before they file a lawsuit in court. Employees generally must go through the administrative process with either the EEOC (if federal discrimination statutes are involved) and/or the PHRC (if state discrimination statutes are involved). This decision appears to allow retaliation plaintiffs to just skip those pesky administrative processes and go straight to court.

One important note: The PWL only protects employees of a "public body" (although, that term has been broadly interpreted to include recipients of public funds as well as government entities).

PHRC: Pennsylvania law prohibits sexual orientation discrimination

Here in Pennsylvania, we have a workplace anti-discrimination law called the Pennsylvania Human Relations Act (PHRA). It's a lot like the federal laws (Title VII, ADA, ADEA). One notable distinction is that the PHRA applies to employers with 4 or more employees, whereas the federal antidiscrimination laws generally require 15 (20 for the ADEA). One similarity is that the PHRA prohibits "sex" discrimination but not expressly "sexual orientation" discrimination.

Well, the Pennsylvania Human Relations Commission recently issued some important guidance: PHRC Guidance on Discrimination on teh Basis of Sex Under the PHRA. A key takeaway:

The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.

The PHRC will accept complaints from people alleging discrimination on the basis of sexual orientation or gender identity/transition/expression. But, will evaluate them "using any and all legal theories available depending on the facts of the individual case."

But all three VPs were men . . .

Earlier this month, the Third Circuit issued a non-precedential opinion in Steele v. Pelmor Laboratories, Inc. I don't consider it a huge case, but it does include some interesting analysis, including a breakdown of "statistical evidence."

The employee claimed that she was passed over for a promotion to VP because she is a woman. She asserted claims under Title VII, the PHRA, and the Equal Pay Act. She cited the fact that the rather small employer had three VPs (the position she wanted), and all three were men. That didn't seem to get her very far on the "pretext" prong of the analysis:

Not official use.

Although “[s]tatistical analyses have served and will continue to serve an important role as one indirect indicator” of discrimination, Mayor of City of Phila. v. Educ. Equal. League, 415 U.S. 605, 620 (1974), such raw numerical comparisons as Steele offers here are of limited utility, absent “any analysis of either the qualified applicant pool or the flow of qualified candidates over a relevant time period,” Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 543 (3d Cir. 1992). The usefulness of statistical evidence in proving discrimination “depends on all of the surrounding facts and circumstances,” Int’l Broth. of Teamsters v. United States, 431 U.S. 324, 340 (1977), but the record here says nothing about the facts and circumstances surrounding the hiring of the three past male Vice Presidents. Even if it did, such evidence would be of questionable strength in establishing any sort of pattern of discriminatory conduct. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988) (“[S]tatistical disparities must be sufficiently substantial that they raise such an inference of causation.”). Without any evidence related to the hiring of three past Vice Presidents, particularly whether there were qualified female candidates who applied for those openings and were denied, we must reject Steele’s argument that there is “statistical evidence of pretext.” (Opening Br. at 18.).

In short: the fact that all three VPs were men did not carry the day for her.

The Court also examined the plaintiff's qualifications in comparison to the man who got the job. To establish pretext, the employee must show that "the qualifications of the person actually promoted were so much lower than those of h[is] competitors that a reasonable factfinder could disbelieve the claim that the employer was honestly seeking the best qualified candidate." Bray v. Marriott Hotels, 110 F.3d 986, 999 (3d Cir. 1997). The Court concluded that, if anything, the man who received the promotion was more qualified.

Finally, we have the EPA claim. To prevail on an EPA claim, the plaintiff must show that she received less compensation for substantially equal work ("work of substantially equal skill, effort and responsibility, under similar working conditions"). She used the guy who was VP as her comparator... umm, I mean obviously he doesn't do the same work, he got promoted to VP, right? Of course I'm right. The Court concluded that the male VP was the plaintiff's boss and paying him more was not discriminatory.

Proposed PA Legislation Would Make Online-Only Job Applications Unlawful

The Pennsylvania Human Relations Act (PHRA) is Pennsylvania's employment discrimination statute. A new House Bill, HB 579, would amend the PHRA to define unlawful discriminatory practices to include employers that:

Print, publish or advertise in any way a job opportunity in this Commonwealth that exclusively utilizes an Internet-based application for employment.

It's not clear whether it has any chance of passing.

HT: PBA Labor & Employment Law Section on LinkedIn.

Too Small to Sue

If you Google Too Big to Sue, you will get a bunch of stories about Wal-Mart v. Dukes (or maybe Google is just tailoring the search results to the employment law nerd in me, you'll have to try it and let me know). Of course, that's not even close to reality. You can still sue Wal-Mart. You can still sue Wal-Mart for employment discrimination. You can even sue Wal-Mart for employment discrimination as part of a class action - you just need glue.

But, in employment law there are many statutes under which employers can be too small to sue. Many of the statutes only apply to employers with a certain number of employees. A quick rundown of some of the important ones:

• Title VII (Sex, Race, Religion, Color, National Origin) - 15 or more employees
• ADEA (Age) - 20 or more employees
• ADA (Disability) - 15 or more employees
• GINA (Genetic Information) - 15 or more employees
• FMLA (Family & Medical Leave Act) - 50 or more employees

Of course, nothing is that simple in the world of employment law. The calculations themselves can become difficult. For example, the Department of Labor website provides the following with regard to FMLA coverage:

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

And then there are the alternate routes to the same destination. For example, a Pennsylvania employer with 10 employees is not covered by Title VII... but is still prohibited from discriminating on the basis of race by the Pennsylvania Human Relations Act (generally covering employers with four or more employees). Other states have a wrongful termination (aka public policy exception to at-will employment) tort that allows employees to sue their employers for certain types of discrimination regardless of size.

The bottom line is that many employment law statutes carve out exceptions for employers that are "too small to sue." But, the calculation may be harder than you think.

Law Firm Shareholder Not an "Employee" in 3rd Circuit

Yesterday, the Third Circuit held that a shareholder (or partner) in a law firm is an employer, not an employee. Kirleis v. Dickie, McCamey, and Chilcote, No. 09-4498 (July 15, 2010 3d Cir.). Why does this matter? As an employer, she is "precluded from bringing claims under the employment anti-discrimination laws." At issue in this case: Title VII, Equal Pay Act, and PHRA.

In an extremely brief analysis, the Third Circuit applied the six factors for determining whether a shareholder is an employer or employee from the U.S. Supreme Court:

(1) whether the organization can hire or fire the individual or set the rules and regulations of the individual's work;
(2) whether and, if so, to what extent the organization supervises the individual's work;
(3) whether the individual reports to someone higher in the organization;
(4) whether and, if so, to what extent the individual is able to influence the organization;
(5) whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; [and]
(6) whether the individual shares in the profits, losses, and liabilities of the organization.

Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 449-50 (2003).

If you're curious which facts were most compelling to the Third Circuit:

As a Class A Shareholder-Director of DMC, Kirleis has the ability to participate in DMC's governance, the right not to be terminated without a 3/4 vote of the Board of Directors for cause, and the entitlement to a percentage of DMC's profits, losses, and liabilities.

The Third Circuit affirmed the District Court's grant of summary judgment in favor of the law firm.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Third Party or Associational Retaliation

Yesterday, the Supreme Court granted certiorari, agreeing to hear Thompson v. North American Stainless on appeal from the Sixth Circuit en banc. Lawffice Space readers may remember my analysis of this case in Fire the Fiancé - Third Party Retaliation Claims.

The Petition for Certiorari (via SCOTUSblog) lists the question presented to the Supreme Court as:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

For Third Circuit (binding in Pennsylvania federal courts) analysis of this issue, see Fogleman v. Mercy Hospital.

In Fogleman, the Court addressed ADEA, ADA, and PHRA retaliation claims brought by the son of a man who filed an age and disability discrimination lawsuit. Son and father worked for the same employer which fired the son after the father's claims. The Court held that:

[T]he District Court was correct to reject as a matter of law [son's] third-party retaliation claims brought under the ADEA, the PHRA, and the first anti-retaliation provision of the ADA, 42 U.S.C. § 12203(a).

Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002). However, the Court also held that "[Plaintiff] may assert his third-party retaliation claim under this section (the 'second anti-retaliation provision' 42 U.S.C. § 12203(b)) of the ADA."

And now, it appears the Supreme Court will weigh in on associational retaliation.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.