It has been an exciting year for advancements in LGBT rights. The Supreme Court struck down portions of the federal Defense of Marriage Act in United States v. Windsor in June 2013, and with that, the floodgates seemed to have open. During the last 12 months, state after state has legalized samesex marriage in one way or another. In October 2013, New Jersey became the 14th state to legalize same-sex marriage when its governor, Chris Christie, chose not to appeal a court ruling overturning the state’s ban. The next month, Illinois Governor Pat Quinn signed an act declaring the rights of Illinois citizens to marry whomever they choose. Favorable rulings (some now appealed, some immediately effective) followed in New Mexico, Utah, Oklahoma, Kentucky, Virginia, Texas, Michigan, Ohio, Arkansas, Idaho and Oregon. Finally, on May 20, 2014, Pennsylvania joined 18 other states where same-sex marriage is legal when the Honorable John E. Jones, III (a judge appointed by President George W. Bush) ruled in favor of marriage equality proponents in Whitewood v. Wolf and the Commonwealth’s ultraconservative governor, Tom Corbett,took a pass at appealing.
But before you dust off your hands and declare the work of gay rights advocates in Pennsylvania completed, realize this: you can still get fired by your employer for being gay. That is true in Pennsylvania. That is true at the federal level. That is true in 28 other states. If you are transgender, it is true in 34 states, and the federal laws protecting you are as thin as Dick Cheney’s hair. This, my friends, is the next frontier and, in many ways, is just as important (although decidedly less glamorous) than the same-sex marriage fight. If your employer can still terminate you with impunity based on your sexual preference, how safe is your family, your marriage, your financial security – all of the other things that our community has been fighting to protect? Here is the state of the law as we currently find it.
Federal Protections
The bread and butter of employee rights come from the Civil Rights Act of 1964. Known as Title VII, this act protects employees from discrimination and harassment based on their race, color, religion, sex and national origin. Other similar acts (the Age Discrimination in Employment Act and the Americans with Disabilities Act) provide similar protections for employees discriminated against or harassed based on their age (over 40) or qualified disability. Unfortunately, none of these protected categories clearly encompass sexual orientation or gender identity.
Since 1994 (yes, 20 years ago), a law known as the Employment Non-Discrimination Act (“ENDA”) has been introduced in every single Congress except for one. ENDA would specifically prohibit companies with 15 or more employees from discriminating against or harassing employees based on their sexual orientation or gender identity. Notably, not all employees would receive these protections because the act exempts small businesses, religious organizations and the military. Although the bill passed the Senate by a vote of 64 to 32 on November 7, 2013, it remains awaiting a formal vote in the House of Representatives where, realistically, it is expected to fail.
If ENDA were to somehow pass, it would mean that employees who feel they were being discriminated against or harassed based on sexual orientation or gender identity could proceed with legal action against their employer using the Title VII framework. They would begin by filing a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”), who would in turn conduct an investigation. At the conclusion of the EEOC’s investigation (assuming the case was not resolved at that level), the employee would have the ability to proceed with a federal lawsuit, from which she could recover lost wages and damages for emotional pain and suffering caused by her employer. However, with ENDA stalled in the House, LGBT employees must rely on often non-existent state law protections.
Pennsylvania Law
Currently, 17 states and the District of Columbia prohibit companies from discriminating against employees because of their sexual orientation and gender identity. Pennsylvania is not one of them. Pennsylvania is, however, one of several states where LGBT anti-discrimination legislation has been proposed.
Pennsylvania Senate and House Bill Number 300 would amend the Pennsylvania Human Relations Act (“PHRA”) to include “sexual orientation and gender identity or expression” as a protected category. It would apply these protections to companies with four or more employees (a threshold notably lower than that of ENDA), and does not contain an exemption for religious organizations. Much like the quandary at the federal level, it appears that Bill No. 300 is stalled in the legislature, although Governor Corbett has stated that he will sign the bill if it ever reaches his desk.
Luckily, the two largest cities in Pennsylvania (Philadelphia and Pittsburgh), as well as 32 other Pennsylvania municipalities, have local laws already on the books that provide employment discrimination protections to LGBT employees. The Philadelphia Fair Practices Ordinance added a provision prohibiting employment discrimination based on sexual orientation way back in 1982. In 2002, the prohibition against discrimination based on gender identity was added to the Philadelphia law. In Pittsburgh, the prohibition against discrimination based on sexual orientation went into effect in 1997 and is now part of the city’s Non-Discrimination Code. Unfortunately, the Philadelphia and Pittsburgh laws only apply to companies located in those cities. In other words, if an individual lives in Pittsburgh, but works in another municipality, the Pittsburgh law would offer that person no protection.
What’s Next?
The pathway forward for LGBT employees with regard to these protections is not entirely clear, although a creeping kind of slow progress does seem to be taking place. On June 16, 2014, a White House representative hinted that President Barack Obama is preparing to issue an Executive Order that would prohibit federal government contractors from discriminating against employees based on sexual orientation and gender identity. While this may not seem like a big deal, these protections could be significant since federal contractors employ a significant percentage of American workers.
Pennsylvanians who don’t work for federal contractors or in municipalities with local protections must be content to play the waiting game. Unfortunately, unless and until ENDA and/or Pennsylvania Senate and House Bill Number 300 passes, the majority of Pennsylvania workers will remain unprotected from employment discrimination based on their sexual orientation and gender identity.
Such is the ironic state of LGBT rights today. In Pennsylvania (and in many states across the country), you can marry whomever you want; you can file both state and federal joint income tax returns; you can sponsor a same-sex foreign spouse as a U.S. Citizen; you don’t have to pay inheritance tax if your same-sex spouse dies; you can collect your same-sex spouse’s retirement benefits; you and your same-sex spouse can adopt a child; and you can get fired because of your sexual orientation or your gender identity.
Mariah L. Passarelli, Esquire is a labor and employment attorney at BIR.
