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 because even if the Supreme Court ultimately rules that Title VII does not 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.