New Pa. Guidance Interprets Anti-Discrimination Law to Cover LGBT Individuals

Q.  Does Pennsylvania State law protect employees against discrimination based on their sexual orientation and gender identity?

A.  The PHRC, however, recently released new guidance expanding the definition of the term “sex” under the Act to include LGBT status. The PHRC is an agency of the executive branch of the Pennsylvania government under the direction of Governor Tom Wolf. The new PHRC guidance broadens the definition of “sex” under the Act to include “sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and/or gender expression depending on the individual facts of the case.” As a result, the PHRC now takes the position that the Act prohibits “discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.” The guidance announces that the PHRC will accept sex discrimination complaints from individuals alleging discrimination based on their LGBT status, and employers will be forced to defend those complaints.

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Lee E. Tankle

Circuit Split on Sexual Orientation Discrimination Continues With New Second Circuit Opinion

Q.  Is sexual orientation a protected category under federal discrimination laws?

A.  It depends on what Circuit you are located in.  On February 26, the U.S. Court of Appeals for the Second Circuit (which exercises federal jurisdiction in Connecticut, New York, and Vermont), joined the Seventh Circuit (with jurisdiction over Illinois, Indiana and Wisconsin) in holding that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964.  Now there are two circuit court decisions ruling that sexual orientation is protected under Title VII.  These decisions conflict with at least one decision, of the Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia).

Many states and some cities and other municipalities have enacted laws that expressly and directly prohibit sexual orientation discrimination. There is, however, no federal law that directly outlaws this type of discrimination.  While we continue to wait for  Congress to act or the Supreme Court to take up a case for review, employers should consider treating sexual orientation as a protected class when making employment decisions and drafting employment policies.

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Susan K. Lessack