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Protection Against Discrimination Because of Sexual Orientation: Pennsylvania’s Scattered Approach
by Virginia L. Hardwick
If you are like the majority of Americans, you believe that discrimination on the basis of sexual orientation
is wrong, and you believe that it is illegal. You might be surprised to know that about half of all Americans
live in jurisdictions that provide no protection against discrimination because of sexual preference.
Many of those unprotected workers are in Pennsylvania. (New Jersey’s Law Against Discrimination, on the other
hand, does provide protection against discrimination on the basis of sexual orientation.)
Federal civil rights and anti-discrimination laws do not extend their protections to gay workers or to gays
who seek housing. In other words, federal law offers no recourse to an employee whose employer fires him
only because the employee is homosexual. The Pennsylvania Human Relations Act (“PHRA”) protects Pennsylvanians
from discrimination in employment, housing and public accommodations on the basis of race, color, national
origin, religion, age and disability. However, the PHRA provides absolutely no protection if the
discrimination is because of sexual orientation.
Although there is no state-wide system in place, some Pennsylvania residents are protected by legislation
enacted by municipalities and one county. Erie County has adopted legislation that protects against
discrimination based on sexual orientation, as have Allentown, Easton, Harrisburg, Lancaster, Lansdowne,
New Hope, Philadelphia, Pittsburgh, Scranton, Swarthmore,West Chester and York. In addition, State College
has an ordinance that protects only against discrimination in housing. There is a great deal of variation
and uncertainty about the recourse that an individual claiming discrimination has under this patchwork of
local ordinances.
Protection by Courts
Even in Pennsylvania, it is possible to find some protections for those discriminated against because of
sexual orientation or gender identity under existing laws.
Although Title VII, the federal anti-discrimination statute, does not expressly protect against such
discrimination based on sexual orientation, the U.S. Supreme Court has held that an employer who
discriminates because an employee does not fit “gender stereotypes” has engaged in illegal discrimination
on the basis of gender. For example, an employer’s comments that a female employee should dress more
femininely or wear makeup may be used as evidence of sex discrimination if that employee is fired or
is not promoted.
In addition, an employee who is subjected to sexual harassment will have a cause of action for gender
discrimination if that sexual harassment was motivated by coworkers’ belief that the employee was
insufficiently “masculine” or “feminine.” So, for example, a worker who is sexually harassed by co-workers
because he was of slight build and wore an earring might show that he suffered discrimination
“because of sex.” Whether the plaintiff in that situation was actually gay would be of no relevance;
likewise, it would be irrelevant whether the defendants were motivated by anti-gay animus.
However, the lack of any statutory protection for discrimination on the basis of sexual orientation
leaves a gaping hole. A gay or lesbian employee who is sexually harassed because of sexual orientation
may have a cause of action. But, if that gay or lesbian employee is just fired because of sexual orientation,
there is no recourse under federal or Pennsylvania law.
Legislative Proposals
Numerous proposals that would extend protection against discrimination to gays have died on the vine.
The Employment Nondiscrimination Act, proposed federal legislation that would have protected gays from
discrimination in employment failed to pass the
U.S. Senate by a vote of 50-49, in 1996, and never passed the House.
The Republican majority has blocked any movement on the issue in recent years, and it remains to be seen
whether this is an issue that the newly elected Democratic majority will address.
In Pennsylvania, the legislature has sent mixed signals on expanding rights for gays. In 2002, the Ethnic
Intimidation Act, a statute addressing hate crimes, was amended to include protection against crimes
committed to victimize a person because he or she is homosexual or transgender. In July 2006, the legislature
rejected the Marriage Protection Act, which would have permanently barred same sex marriage or civil unions.
(This rejection was not a strong statement of support for gay rights; the legislation passed the Senate,
and the House adopted a bill that would bar same sex marriage, but allow civil unions.)
Proposed legislation introduced in 2006 would have expanded the PHRA to include protection against
discrimination on the basis of sexual orientation and gender identity. That bill, which had 57 sponsors in
the House and 19 in the Senate, died in committee before the session ended. Strong support in the legislature
indicates that the bill will be re-introduced in 2007, and that it may enjoy wide popular support.
A June 2003 poll of Pennsylvania voters by a Republican polling organization found that 68% of
Pennsylvanians support legislation that would ban discrimination based on sexual orientation, gender
identity or expression. Equal rights in workplace are supported by 84%, in public accommodation by 81%,
and in housing by 77%. Interestingly, the majority of Pennsylvania voters incorrectly believe that
these rights are already secured by federal law and 38% thought they were protected by state law.
More Protection in New Jersey
New Jersey is far ahead of Pennsylvania when it comes to protecting against discrimination on the basis of
sexual orientation. Discrimination against gays in employment, housing and public accommodations has been
banned by the Law Against Discrimination since 1992; amendments enacted on December 19, 2006 and effective
in June 2007 will extend this protection to “gender identity and expression,” which includes those who are
transgender. On October 25, 2006, the New Jersey Supreme Court, in Lewis v. Harris, held that the state
legislature must take action to either amend the state marriage statutes to include same-sex marriage or
must create a parallel structure that will make the rights and benefits of civil marriage available to
same-sex couples. In compliance with the Court’s Order, the New Jersey Legislature has now made New Jersey
the third state in the U.S. to recognize civil unions for same sex couples. The Lewis v. Harris decision and
the legislation which followed will likely impact the obligations of employers in New Jersey to provide
medical benefits to same-sex partners to the same extent that those benefits are provided to spouses, and to
allow family leave to care for a same sex partner under New Jersey’s Family Leave Act.
With its stable of experienced attorneys in various areas of employment law, Hill Wallack LLP stands
ready to aid both employees and employers in dealing with a panoply of issues that may arise, including the
design and creation of internal policies and procedures to address workplace discrimination problems or
litigation.
Virginia L. Hardwickis an associate of the
Employment & Labor Law Practice Group of Hill Wallack LLP in the Doylestown, Pennsylvania Office.
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