(Many thanks to Christina, for her gracious invitation to join the blog as a regular contributor! -Brian)
In the wake of controversy over efforts in North Carolina and other states to roll back legal protections for lesbian, gay, bisexual, and transgender (“LGBT”) people, Pennsylvania’s taking a different approach.
On April 7th, Pennsylvania Governor Tom Wolf issued Executive Order 2016-05, hailing it as an effort to combat discrimination. The Commonwealth’s Department of General Services will now require contractors and grantees to agree not to discriminate in hiring, promotion, or other labor matters, or in the award of subcontracts or supply contracts.
Specifically, contractors and grantees will be required to agree not to discriminate on the basis of race, gender, creed, color, sexual orientation, or gender identity or expression. The EO defines sexual orientation as heterosexuality, homosexuality, or bisexuality. Gender identity or expression is defined as an individual’s gender-related identity, appearance, mannerisms, expression, or other gender-related characteristics, regardless of the individual’s sex at birth.
Notably, EO 2016-05 requires agency heads to recommend to the Secretary of General Services such sanctions “as may be appropriate” for entities that fail to comply with Commonwealth contracting programs. Coupled with provisions that establish compliance, reporting, and audit systems, this EO suggests the Wolf administration intends to pursue enforcement through a broad variety of executive branch tools—with a particular eye toward addressing discrimination on the basis of sexual orientation or gender identity.
The Department of General Services will also be charged with ensuring that contractors and grantees have a written sexual harassment policy and that the contractor’s or grantee’s employees are aware of that policy. These requirements are expressly made a condition of payment or funding—heightening the urgency for contractors and grantees to review their current policies and employee training programs on non-harassment and non-discrimination.
As a result of this EO, Commonwealth contractors/grantees and potential contractors/grantees should contact knowledgeable employment counsel to ensure compliance, as the Department of General Services begins to set up enforcement efforts.