“John Doe,” a Philadelphia gay man, wants a federal judge to order the city’s Human Relations Commission to investigate his antibias complaint against Elwyn Inc.
Elwyn is a human-services agency based in Elwyn, Pa., with an office in West Philadelphia, where Doe works. The agency serves individuals with intellectual, physical, behavioral and developmental disabilities.
Doe, 32, is suing Elwyn in federal court, claiming Elwyn failed to promote him due to antigay bias, and that he works in a hostile environment. Doe also contends the city’s refusal to investigate his antibias complaint against Elwyn could jeopardize its success in federal court.
Typically, antibias litigants must exhaust their local remedies prior to litigating in federal court. It remains in dispute whether Doe exhausted his local remedies.
Justin F. Robinette, an attorney for Doe, said Elwyn seeks the dismissal of Doe’s sexual-orientation discrimination claims, on the basis that they weren’t investigated locally.
Robinette said he’s concerned a federal judge will dismiss Doe’s sexual-orientation claims before they can reach a jury.
Attorneys for Elwyn had no comment for this story.
Robinette said the federal Equal Employment Opportunity Commission accepted for investigation Doe’s antibias complaint against Elwyn. But it’s not clear whether the agency investigated Doe’s sexual-orientation claims.
“The EEOC hasn’t clarified exactly what it investigated in terms of my client’s complaint,” Robinette said.
Doe’s suit refers to the city’s rejection of his complaint as “woefully inadequate” conduct.
“If my client is successful, it will help ensure that another LGBT individual won’t have to go through what he’s going through,” Robinette said.
Doe, a data analyst at Elwyn, is HIV-positive, thus he’s litigating using a pseudonym.
Doe’s antibias complaint against Elwyn remains pending with U.S. District Judge Nitza I. Quinones Alejandro. A jury trial has been requested.
Doe’s request that the city be ordered to investigate his antibias complaint remains pending with U.S. District Judge Gerald J. Pappert. Robinette said he’s trying to have the request transferred to Alejandro for judicial economy.
Doe allegedly was referred to as “girl” by coworkers at Elwyn, warned about the “tearing” effect of anal sex, asked about details of his sexual activities and repeatedly told that “all gays are going to hell,” according to his suit.
“My client has numerous claims against Elwyn,” Robinette concluded. “Some of the claims are based on sex discrimination, but many others are based on sexual-orientation discrimination. It would be a miscarriage of justice if the sexual-orientation claims are dismissed simply because they weren’t investigated by the [city]. So we fervently hope for a judicial order that the [city] will do the right thing and investigate my client’s complaint.”
Rue Landau, executive director of the city’s Commission on Human Relations, issued this statement: “Counsel for [Doe] chose to file this complaint with the EEOC and the Pennsylvania Commission, not the Philadelphia Commission. We gladly would have accepted the complaint had it been filed with our office. We are keenly aware of the fact that our explicit protections for sexual orientation and gender identity under the city’s Fair Practices Ordinance make our agency the preferred forum to investigate and adjudicate this complaint. Nonetheless, counsel, by his own volition, chose to dual file this complaint with the state agency and the EEOC. As we have relayed to counsel many times, the PCHR is prohibited from accepting cases already filed at the PA Commission based on Section 9-112 (4) of the Philadelphia Fair Practices Ordinance which states, ‘The Commission shall not accept a complaint from any person who has filed a complaint with the Pennsylvania Human Relations Commission with respect to the same grievance.’
“The good news is that, despite counsel’s procedural missteps, none of the complainant’s rights have been abrogated,” Landau continued. “Both the Philadelphia and the Pennsylvania Commissions have work-sharing agreements with the EEOC, under which any complaints filed with the EEOC and the state or local agency are considered ‘dual filed’ and covered under federal, state and local law.
“As the agency charged with enforcing the nondiscrimination laws, which locally include explicit protections for sexual orientation and gender identity, we welcome all complaints from the LGBT community, as has always been our practice.”