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.

Since everyone knows that the country of Malta (“Where’s that, Jake?”) is in the vanguard on human rights, and is more enlightened and progressive than, say, an old-fashioned, traditional country such as the US, which usually lags behind, it should therefore come as no surprise that Malta just outlawed discrimination against transgender individuals, on grounds of sex.

malta flag : very big size malta black map with flag

Malta is the first European country to forbid discrimination on the basis of gender identity in its Constitution.

transgender : Gay Pride flag on stand on pink background Stock Photo

Perhaps the example of Malta may influence the US when it comes to guaranteeing human rights (for its own citizens, that is).

 

On June 16th we issued an “Alert!” when Reuters reported that “President Barack Obama will sign an executive order barring federal contractors from discriminating on the basis of sexual orientation or gender identity.”

It has finally been announced that the President will sign such an order today as tweeted by Valerie Jarrett, senior adviser to the President:  “This Monday, Pres Obama will sign an Executive Order protecting #LGBT workers from employment discrimination #OpportunityForAll.”

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This comes in the midst of the furor over the effect of the Hobby Lobby decision of the Supreme Court on the support for ENDA by LGBT groups.   More is sure to follow – soon.

12:30 pm — The New York Times reported this morning that the President indeed signed the executive order.     “But Mr. Obama rebuffed requests by religious groups to exempt them.   Religious groups argued that they should not be forced to go against their beliefs in order to win or keep federal contracts available to others.   Advocates for religion said the order would lead to a court fight.”

 

A new YouGov/Huffington Post survey on employment discrimination against homosexuals has some interesting statistics.  The most startling is that by a 62% to 14% margin, the American public believes that it is currently illegal to fire an employee for being gay or lesbian.  Other results are below, without comment.

Wanna see the results broken down by age, gender, party identification, race, region and income? These stats can be found here. 13225132_s

Would you favor or oppose a law prohibiting job discrimination by employers against gays and lesbians?

Strongly favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33%
Somewhat favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..17%
Somewhat oppose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ….16%
Strongly oppose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..22%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%

Do you think it should be legal or illegal for an employer to fire someone for being gay or lesbian?

Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%
Illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%

To the best of your knowledge, would you say it is currently legal or illegal under federal law to fire someone for being gay or lesbian?

Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14%
Illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25%

 

 

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GRAND FORKS, North Dakota — even Grand Forks! – is considering a bill to ban employment discrimination based on sexual orientation or gender identity.  If it passes, Grand Forks would be the first city in North Dakota to do so.

One City Council member said that “Fargo, Grafton and Mandan are waiting to see the outcome of the proposed amendment to Grand Forks law defining classes protected from discrimination.”

The Grand Forks Herald said that “Opponents worry that it would infringe on the religious and property rights of others, saying people with religious convictions against homosexuality should be able to refuse to do business with or rent housing to homosexuals. Supporters say that stance is outdated, and formal protections against it shouldn’t even be needed.”

A Charlotte-based private security company was just sued by the EEOC in a Title VII class action lawsuit for sexual harassment of male employees based upon their gender.  The employees, security officers, were allegedly harassed by a captain and lieutenant who made offensive comments to them, solicited nude pictures from them, asked them to undress in front of them, solicited them for sex, forced them to accompany them to gay strip bars while on duty, touched their chests and genitals, and offered promotions to them in exchange for sex.   

 

Despite the complaints which many of the employees filed, the company allegedly failed to prevent and promptly correct the harassment and suspended, demoted and/or discharged certain of the complaining employees.

 

Note that this is a lawsuit premised upon sexual harassment, which is a form of sex or gender discrimination. This is not a case of discrimination or harassment based upon sexual orientation, which is not prohibited under federal law.  These employees were allegedly harassed because of their gender, not because of their sexual orientation.   "All employees, men and women alike, are entitled to a workplace free from sexual harassment," noted an EEOC attorney.

 

Employers should note, however, that discrimination or harassment based upon sexual orientation is prohibited under the laws of many states and municipalities, such as New York State and New York City.  

 

A proposed ordinance in Helena, Montana which would prohibit sexual orientation discrimination is being opposed by those who cite a recent EEOC decision which held that under Title VII discrimination against a transgendered individual is a form of sex discrimination. They argue that the proposed ordinance is unnecessary because this EEOC decision could be applied to cases of gender-based stereotypes and “also impact gender-based stereotyping claims filed by lesbian, gay and bisexual individuals.”

Said the Mayor, “If I’m understanding this right, the goals of the people who are advocating our city ordinance are going to be met, as long as this EEOC decision stands.”
 

The EEOC decision cited in Helena was the subject of our April 25th blog, where we commented noted that transgendered individuals can now file charges of such discrimination with the EEOC. In that case, a transgendered woman was refused hiring after she disclosed her transgendered status. Although the EEOC did not pass upon the merits of her case, it nonetheless ruled that under the famous Supreme Court case of Price Waterhouse v. Hopkins where the Court held that sex discrimination under Title VII related to gender, as well as biological sex, “gender discrimination” included discrimination against transgendered people.

The opponents of the Helena bill fail to note that the EEOC decision has not as yet been reviewed or tested by any court, and, in any event, only applies to transgendered individuals, not to gender stereotypes or gender identiity.   As Helena City Commissioner Katherine Haque-Hausrath commented, “Plenty of lesbian and gay people conform to gender stereotypes. I don’t think we can necessarily hang our hat on that.”

 

Thanks for this blog entry goes to Cathy Brennan, Esq., whose blog, Gender Identity Watch is a valuable resource.  We quote her blog:

 "Grand Island City Council rejected Ordinance 9407 to protect people from being denied employment, housing, or public accommodation because of their sexual orientation or gender identity.

The ordinance would have defined “gender identity” as “the actual or perceived appearance, expression, identity, or behavior of a person as being male or female, whether or not that appearance, expression, identity, or behavior is different from that traditionally associated with the person’s designated sex at birth.”

Council Summary of Ordinance 9407

See our previous blog for a discussion of other municipalities which have rejected or repealed similar laws.   

 

The city of Helena, Montana may be next to join the “national trend” in passing laws to protect lesbian, gay, bisexual, and transgender people from employment discrimination.  Already, Bozeman and Missoula have such laws.

Interestingly, what also may be included in the proposed law is non-discrimination based upon “familial status,” which, according to Helena City Attorney Jeffrey Hindoien (who is drafting the proposed law) “isn’t presently covered, expressly as a protected class for purposes of employment under either state or federal law."