LGBT Law in Pennsylvania

Pennsylvania: Quaker Ideals of Respect for All Missing in this State’s Failure to Protect the LGBT Community from Discrimination

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 which provide no protection against discrimination because of sexual preference. Many of those unprotected workers are in Pennsylvania.

Federal civil rights and anti-discrimination laws do not extend their protections to gay workers, or gays who seek housing. In other words, if you are gay and are fired or denied an apartment just because you are gay, there is no protection for you under federal law.

Pennsylvania state law does no better. 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, and use of a guide dog. However, the PHRA provides absolutely no protection if the discrimination is because of sexual orientation or gender identity.

What can you do if you live in Pennsylvania and are concerned that you are not protected against discrimination?

Well, you can move. This suggestion is not facetious. If you live in the eastern part of the state, you might consider a move across the river to New Jersey, which has one of the most protective anti-discrimination laws in the country. Or, you might live in Pennsylvania but commute to a job in New Jersey. New York also provides protections for gays and lesbians. This strategy isn’t as helpful for those who live in other parts of the state: Ohio, West Virginia and Delaware are as backward as Pennsylvania in this regard and have not yet passed laws to protect gays from discrimination.

You might also choose to live or work in a better Pennsylvania zip code. One in five Pennsylvanians lives in one of the localities which have protective legislation against discrimination based on sexual orientation. 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, so you may wish to confer with an attorney about the protections that each provides.

You can choose your employer with care. Even though it is not required by Pennsylvania law, 433 of the Fortune 500 companies have internal policies that include nondiscrimination on the basis of sexual orientation. Whether those policies give you a right to sue if you suspect discrimination will depend on a wide variety of factors, but at least you will have chosen an employer that does not make a policy of discrimination.

You can advocate for change. Contact your local legislators to find our whether they support [http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtTypeHTM&sessYr2007&sessInd0&billBodyS&billTypB&billNbr0761&pn=0838 SB 761] and [http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtTypeHTM&sessYr2007&sessInd0&billBodyH&billTypB&billNbr1400&pn=1926 HB 1400]. These bills would amend the Pennsylvania Human Relations Act to prohibit discrimination based on “sexual orientation, gender identity or expression.” Similar bills have been introduced before and have languished, but an increasing number of representatives are supporting this legislation now. That legislation may enjoy wide popular support. A June 2003 poll of Pennsylvania voters by a Republican polling organization found that 68 percent of Pennsylvanians support legislation that would ban discrimination based on sexual orientation, gender identity or expression. Equal rights in workplace are supported by 84 percent; in public accommodation by 81 percent; and in housing by 77 percent. Interestingly, the majority of Pennsylvania voters incorrectly believe that these rights are already secured by federal law, and 38 percent thought they were protected by state law.

Pennsylvania did make one step toward increased protection of the LBGT community. 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.

While you are advocating, speak to your representative about the so-called “Marriage Protection Amendment,” which would amend the Pennsylvania Constitution to define marriage as solely between one man and one woman, and would prohibit civil unions. 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.) The fight against the new Marriage Protection Amendment will be important for civil rights in Pennsylvania.

What can you do if you think that you have already been discriminated against?

Even in Pennsylvania, it is possible to find some protections under existing laws for those discriminated against because of sexual orientation or gender identity.

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 doesn’t 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 gender 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 co-workers’ belief that the employee was insufficiently “masculine” or “feminine.” So, for example, a worker who is sexually harassed by co-workers because of 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.

These court decisions give some protection for a gay or lesbian employee who is sexually harassed because of sexual orientation. But, if that gay or lesbian employee is just fired because of sexual orientation, there is no recourse under federal or Pennsylvania law. In that case, the employee may have a limited recourse if the employer has a handbook which states that the policy is that discrimination on the basis of sexual orientation will not be allowed.

If you feel that you have been discriminated against on the basis of sexual orientation or identity, you must move quickly! Discrimination claims based on Pennsylvania state law must be filed with the Pennsylvania Human Relations Commission within 180 days; claims based on federal law must be filed with the Equal Employment Opportunity Commission within 300 days. Failure to meet these deadlines will waive your claim forever. Because of the quick and stringent deadlines, and Pennsylvania’s complicated patchwork of local ordinances, LGBT Pennsylvanians who have suffered workplace discrimination should promptly confer with an attorney who specializes in employment law.

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Virginia L. Hardwick is an associate of Hill Wallack LLP. She is a member of the Litigation Division and Employment & Labor Law Practice Group.

Ms. Hardwick concentrates her practice in Employment Discrimination and Civil Rights & Constitutional Litigation. She has represented clients in all phases of employment related litigation, including cases involving discrimination, harassment, wrongful discharge, and whistleblower claims. She has brought employment claims before the EEOC, the PHRC, in federal court, and in the state courts of Pennsylvania and New Jersey.

A graduate of Cornell University and NYU School of Law, Ms. Hardwick was a member of the Editorial Board of the NYU Law Review. She clerked for the Honorable John J. Gibbons of the Third Circuit Court of Appeals and served for five years as an Associate Clinical Professor at Seton Hall Law School.

Ms. Hardwick is admitted to practice law in Pennsylvania, New Jersey and New York. She is an active member of the National Employment Lawyers Association and is a member of Hill Wallack LLP’s Website Committee.

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