Protection for Employees in Pennsylvania Who Are Discriminated Against Based on Sexual Orientation, Gender Expression and Gender Identity
On April 7, 2016, Pennsylvania Governor Tom Wolf signed two Executive Orders in an attempt to further combat discrimination in Pennsylvania. The Executive Orders prohibit discrimination in employment based on sexual orientation, gender expression and gender identity. Executive Order 2016-04 prohibits State agencies under Governor Wolf’s authority from discriminating against state employees based on sexual orientation, gender expression and/or gender identity. Executive Order 2016-05 expands that prohibition to state contractors; it does not apply retroactively but rather to future state contracts.
The orders appear to reflect the Governor’s frustrations with the General Assembly which has, to-date, failed to pass the Pennsylvania Fairness Act which would expand protection to all Pennsylvania employees. Unfortunately, since these are executive actions and do not alter existing state law, a covered employee’s only recourse against the types of discrimination banned by the Executive Orders would be to file a contract action in court. The cost of filing a court action could be prohibitive for many employees.
However, employees who have experienced discrimination based on gender identity or sexual orientation also have the option of filing with the Federal Equal Employment Opportunity Commission (“EEOC”). The EEOC interprets the term “sex discrimination,” which is contained in Title VII of the Civil Rights Act of 1964 and is one of several federal laws enforced by the EEOC, to include gender identity discrimination and sexual orientation. Economically speaking, this option may make better sense for an employee as there is no cost to file a complaint.