Sexual Orientation and Gender Identity Discrimination

While Title VII, the federal discrimination law that protects Pennsylvania employees from employment discrimination does not explicitly provide protection for employees who are discriminated against based on sexual orientation, federal courts have found that the law can be interpreted to protect gay or lesbian employees who are subject to discrimination on the basis of sexual orientation due to “discrimination because of sex.” The rationale of the protection for sexual orientation discrimination is found in the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, where the Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, which provides discrimination for discrimination based on sex, noting that there is no more obvious form of sex stereotyping than making a determination that a person should conform to a heterosexuality standard.

While federal law and Pennsylvania state law does not explicitly refer to protection for employment discrimination against Pennsylvania employees who are lesbian, gay, bisexual or transgender (LGBT) employees, there are certain Pennsylvania cities and townships that have adopted laws which prohibit employment discrimination based upon sexual orientation and gender identity.

For instance, the City of Philadelphia Fair Practices Ordinance (law) prohibits employment discrimination based upon sexual orientation or gender identity. The Philadelphia Fair Practices law prohibits gender identity discrimination, which is defined as discrimination based upon an individual’s appearance, behavior, or physical characteristics, that may be in accord with, or opposed to, one’s physical anatomy, chromosomal sex, or sex assigned at birth; and individuals who are undergoing or have completed sex reassignment. Sexual orientation discrimination is also prohibited and is defined to include male or female homosexuality, heterosexuality and bisexuality, by preference, practice or as perceived by others.

The Philadelphia Fair Practices law is quite comprehensive and provides that it shall be an unlawful employment practice for an employer to refuse to hire, discharge, or otherwise discriminate against any employee with respect to tenure, promotions, terms, conditions or privileges of employment based upon sexual orientation or gender identity. Employment agencies are also included and the law provides that agencies cannot fail or refuse to classify properly or refer for employment or otherwise discriminate against any individual. Damages that may be awarded include an order requiring the employer to cease and desist unlawful practices; hiring, reinstatement; lost wages (i.e., back pay); payment for compensatory damages / emotional damages; punitive damages; reasonable attorneys’ fees and costs.

In addition to Philadelphia, many other cities, townships and municipalities have also adopted some form of protection that prohibits employment discrimination based upon sexual orientation and gender identity. These municipalities include: Allentown, Bethlehem, Cheltenham Township, Conshohocken, Doylestown, Easton, Harrisburg, Hatboro, Haverford, Jenkintown, Lancaster, Lansdowne, Lower Merion Township, New Hope, Newtown, Reading, Scranton, Springfield Montgomery County, Susquehanna Township, Swarthmore, Upper Merion Township, West Chester, Whitemarsh Township and York.

While the laws in each municipality which protect employment discrimination based upon sexual orientation, gender identity, or gender expression vary, there are many common features. Laws which protect against gender expression often refer to the manner in which a person’s gender identity is communicated to others, through appearance, behavior, or physical characteristics that may be different than the employee’s sex or sex at birth, and may include employees who are undergoing or have completed sex changes. Typically, the laws track certain requirements of the Pennsylvania Human Relations Act, such as requiring that in order to be subject to the law, the employer must employ four or more employees within the municipality. Some of the laws exclude religious organizations not supported by governmental appropriations from the definition of “employer” subject to the laws.

The sexual orientation and gender identity laws typically set up a local Human Relations Commission which has initial jurisdiction and an employee is typically required to file a complaint within a certain amount of time (typically 180 days) of the discriminatory event in question. The local Commission is typically charged with investigating the allegations of the alleged unlawful practice and may have the power to issue subpoenas to assist in the Commission’s investigation. The local Commissions may also have the power to order public hearings.

If an unlawful practice is found, the local Commissions may have power to issue cease and desist orders, precluding the unlawful practice; and also, the power to order monetary damages in the form of compensation for loss of work, including back pay, reimbursement of other verifiable, reasonable out-of-pocket expenses caused by such unlawful discriminatory practice, a civil penalty and reasonable attorneys’ fees and costs. The laws also typically provide that once the local Human Relations Commission administrative remedies are exhausted an employee has the right to pursue civil action in court.

If you are a Pennsylvania employee who has been discriminated against by an employer based upon your sexual orientation, gender identity, or gender expression, call Abramson Employment Law at 267-470-4742 or contact us online to discuss your legal options.