Are transgender Pennsylvanians protected from employment discrimination? This seemingly straightforward question is actually much more complicated than it seems. First, it is known and undisputed that in certain municipalities and counties within the Commonwealth, various governmental bodies have explicitly adopted ordinances intended to protect transgender employees. However, these protections often serve more of a symbolic, rather than practical purpose, given limitations to enforcement and damages. Regardless, 28 cities, including Philadelphia, State College, New Hope, and Pittsburgh, as well as two counties, Allegheny and Erie, have codified such protections. At a state wide level, Governor Tom Wolf recently issued Executive Order 2016-04 and Executive Order 2016-05, which expanded previous protections put forth by Governor Rendell to explicitly protect transgender state employees and employees of state contractors from discrimination. This assumedly extends beyond just the employees at the State House and covers employees of all state colleges and universities, and the various other state affiliated entities.
For transgender employees of private companies, things are a bit less clear. Many private employers within the Commonwealth have voluntarily adopted their own policies to protect transgender employees, including such major Pennsylvania-based corporations as Comcast, PNC, KraftHeinz, and American Eagle. The enforcement of these policies can prove to be a bit more complicated in court, but they do offer some level of contractual guarantee. Additionally, it can be assumed that an employer would not go out of its way to adopt such a policy if there was no intent to enforce it and nurture a workplace where it is practiced.
While the Pennsylvania Human Relations Act (“PHRA”) does not explicitly include the standard terminology of “gender identity and expression” that is used to denote transgender identity in nondiscrimination laws, the existence of the words “because of sex” could very well implicitly cover this. The Pennsylvania Supreme Court has ruled that the PHRA tracks Title VII of the Civil Rights Act except where there is an explicit difference denoted by the legislature or the courts. Neither the legislature nor the courts have directly addressed whether the current law covers transgender employees. While the U.S. Supreme Court has not yet ruled on the issue, the EEOC and several lower federal courts have found that under the Price Waterhouse test, transgender individuals are protected under Title VII. This ruling is binding for federal employers and persuasive for courts addressing discrimination by private employers. This test views the term “because of sex” as including those who are dismissed from employment, or otherwise adversely impacted, as a result of their employers viewing them as not being the “right kind of” man or woman. The courts have found Title VII to come into play where a woman was fired for not wearing makeup or being “too masculine.” Under this theory, the EEOC and several courts have found that where a person is fired for being a transgender woman, it is clearly because they are not the right kind of woman in the eyes of the employer. Since the PHRA tracks Title VII, it seems like this rationale would likewise apply in Pennsylvania (of note, Title VII also covers all Pennsylvania private employers). However, the Pennsylvania legislature has implied that the PHRA does not cover transgender employees by rejecting what is known as the Pennsylvania Fairness Act (“PFA”). The PFA, a more recent version of what was once referred to as the Pennsylvania Employee Non-Discrimination Act, is an act to incorporate the words “sexual orientation, gender identity and expression” into the existing PHRA, thereby explicitly providing protections against discrimination for transgender employees. This Act has been rejected multiple times, most recently in June 2016, when it stalled in committee. Similarly, the U.S. Congress has rejected the Federal Employment Non-Discrimination Act several times. Thus, it seems a rejection of the PFA by the state legislature may not matter since the PHRA tracks Title VII absent an explicit exception.
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