The Southeastern Pennsylvania Transportation Authority (SEPTA) is not subject to local anti-discrimination ordinances such as the Philadelphia Fair Practices Ordinance, an en banc Commonwealth Court panel ruled in SEPTA v. City of Philadelphia, __ A.3d __ (No. 2445 CD 2009, filed August 7, 2015). SEPTA was the subject of complaints filed with the Philadelphia Commission on Human Relations involving alleged discrimination on the basis of gender identity and sexual orientation. The Philadelphia Fair Practices Ordinance forbids discrimination on those bases, while the statewide Pennsylvania Human Relations Act does not. While the administrative complaints were pending, SEPTA filed a complaint against the City and the Commission seeking a declaration that the Fair Practices Ordinance does not apply to SEPTA because it is a Commonwealth agency. The City filed preliminary objections, which the trial court granted, holding that SEPTA had failed to exhaust its administrative remedies and was not exempt from the Fair Practices Ordinance. On appeal, the Commonwealth Court reversed, concluding that SEPTA, as a Commonwealth agency, is subject only to the Pennsylvania Human Relations Act.
The Pennsylvania Supreme Court vacated the Commonwealth Court’s order and remanded for the Court to conduct the legislative intent analysis announced in Department of General Services v. Ogontz Area Neighbors Association, 483 A.2d 448 (Pa. 1984) (establishing analysis to be used when there is an apparent conflict in the use of powers by two different governmental entities). Under Ogontz, a reviewing court must first determine whether one legislative scheme was intended to have priority over the other. Where that priority cannot be discerned, the court must try to glean legislative intent in a way that gives effect to the mandates of both agencies.
On remand, the Commonwealth Court again held that SEPTA is not subject to the Fair Practices Ordinance or the jurisdiction of the Philadelphia Commission. Writing for the majority, Judge Leavitt decided the case under the first prong of the Ogontz test, noting that SEPTA’s enabling act, the Metropolitan Transportation Authorities Act, confirms that SEPTA is a Commonwealth instrumentality and agency that enjoys sovereign immunity. Neither the First Class City Home Rule Act nor the Pennsylvania Human Relations Act specifically waive SEPTA’s immunity from actions brought under local anti-discrimination ordinances. Thus, the majority held, there is no expression of legislative intent to subject SEPTA to the Fair Practices Ordinance. The majority also considered the second Ogontz prong for the sake of completeness, noting that subjecting SEPTA to potentially hundreds of local anti-discrimination laws in the counties in which it operates would be unduly burdensome and would divert public funds away from SEPTA’s core mission of providing public transportation.
In a dissenting opinion, President Judge Pellegrini opined that, under the first Ogontz prong, SEPTA is subject to local anti-discrimination ordinances “because it is clear under the Constitution and the legislative scheme that Philadelphia’s interests in eliminating discrimination are paramount under the grants of power given to it as compared to the powers given to SEPTA by the General Assembly.” Assuming the Court had to reach the second Ogontz prong, President Judge Pellegrini reasoned that the City can still carry out its legislative mandate without impeding SEPTA’s mandate to provide public transportation. He disagreed with the majority’s suggestion that SEPTA’s compliance with local anti-discrimination ordinances would be too burdensome since SEPTA manages to comply with local traffic and zoning codes, as do many other multi-jurisdictional private businesses.
Judge Simpson also authored a dissent, opining that because SEPTA appealed an order granting the City’s preliminary objections, the record is incomplete. Judge Simpson would remand the case to the trial court to receive evidence and do initial fact-finding regarding the consequences of subjecting SEPTA to the Fair Practices Ordinance.