The Pennsylvania Human
Relations Commission (PHRC), Pennsylvania’s leading agency that
investigates and enforces Pennsylvania’s employment
discrimination laws,
has voted to accept complaints of discrimination from lesbian,
gay, bisexual, and transgender (LGBT) individuals. Specifically,
the PHRC has stated it will interpret complaints alleging workplace
discrimination against LGBT individuals to fall under state law
prohibiting discrimination
on the basis of “sex”:
The term “sex” under the PHRA may refer to sex assigned at
birth, sexual orientation, transgender identity, gender transition,
gender identity, and/or gender expression depending on the
individual facts of the case.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 Commission will accept for filing sex discrimination
complaints arising out of the complainant’s sex assigned at
birth, sexual orientation, transgender identity, gender transition,
gender identity, and gender expression using any and all legal
theories available depending on the facts of the individual
case.Discrimination complaints identifying “sex” as the protected
class and specifying allegations related to sex assigned at birth,
sexual orientation, transgender identity, gender transition, gender
identity, and gender expression will be evaluated on a case by case
basis throughout the Commission’s filing, investigation, and
adjudication processes.
While the City of Philadelphia already prohibited workplace
discrimination on these grounds, the PHRC’s actions extend
protected status to LGBT employees throughout the Commonwealth.
Our blog has
previously discussed the question of whether laws prohibiting
sex discrimination inherently protect sexual orientation and/or
gender identity in the context of Title VII. While many
observers expect the
Supreme Court to eventually weigh in on the Title VII issue,
the question remains in flux as a matter of federal law.
In light of the lack of clarity in the Title VII case law,
states are beginning to take action. For example, the Michigan
Civil Rights Commission
took action earlier this year, unanimously voting to prohibit
employment discrimination on the basis of sexual orientation and
gender identity.
The PHRC’s action can be viewed as part of the trend of state
agencies taking action to interpret their own state laws
independently of federal court guidance. This is
significant in that even if the Supreme Court ultimately rules that
Title VII does protect employees’ sexual orientation and/or
gender identity, these state agency interpretations would not be
overruled. State court challenges to these agency
interpretations, however, remains a possibility and warrants
monitoring.
The takeaway for Pennsylvania employers is more straightforward:
assess your hiring, equal opportunity, and anti-harassment
policies, programs, and practices to make sure they include sexual
orientation and gender identity or expression as protected
characteristics and reflect non-discrimination and non-harassment
principles as it applies to LGBT employees and applicants.
Jeffrey Phillips Phoenix Lawyer 