January 1, 1900

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.

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.