The Pennsylvania Human Relations Commission says it will investigate LGBT antibias complaints under certain circumstances. But an intake form used by PHRC has raised questions regarding its commitment to eradicating anti-LGBT workplace bias.
The form, which is available online, is entitled “Employment Discrimination Questionnaire.” The form instructs complainants alleging bias on the basis of “sex” to check a box to identify as “male,” “female” or “pregnant.”
Justin F. Robinette, a Berwyn-based civil-rights attorney, blasted the form. He said discrimination on the basis of sexual orientation and/or gender identity is a form of sex discrimination. The intake form’s boxes for sex discrimination should include options for sexual orientation and gender identity, he said.
Robinette also noted that many LGBT complainants are gender-fluid, and don’t identity as “male” or “female.”
“Ironically, the form promotes gender-stereotyping, which the agency should be striving to eradicate,” Robinette said.
He said the form’s design actually discourages LGBT people from filing workplace antibias complaints.
“The current design of the form is offensive, antiquated and needs to be revised,” Robinette added.
Christina Reese, a PHRC spokesperson, didn’t respond to a question about whether the form would be revised. But she issued this statement about PHRC’s handling of LGBT antibias complaints:
“Currently, the Pennsylvania Human Relations Act (PHRA) does not specifically state that it covers discrimination against Lesbian, Gay, Bisexual, or Transgender (LGBT) individuals. However, the PHRA does cover discrimination based on sex. And federal courts and federal administrative agencies have held that discrimination claims filed by LGBT individuals may be taken, investigated and analyzed as sex-discrimination claims. The gist of these claims is that LGBT individuals do not comply with sexual stereotypes and that adverse actions against an LGBT individual due to that person’s failure to comply with sexual stereotypes amounts to discrimination based on sex. The Pennsylvania Human Relations Commission (PHRC) will accept and investigate sex-stereotyping discrimination claims filed by LGBT individuals. The PHRC has not yet had an LGBT-discrimination case that progressed to a public hearing and [was] decided by PHRC’s commissioners. Also, currently there are no Pennsylvania appellate state court decisions applying the sex-stereotyping analysis to a discrimination complaint under the PHRA filed by an LGBT individual.”
Robinette acknowledged Pennsylvania’s antibias law doesn’t explicitly ban discrimination due to sexual orientation and gender identity. But he emphasized the law forbids sex discrimination, which encompasses all forms of anti-LGBT discrimination, in his opinion.
“LGBT complainants shouldn’t have to jump through an additional hoop of demonstrating they’re the victim of gender stereotyping to get their complaint investigated by the PHRC,” Robinette said.
He added: “The PHRC is narrowly interpreting sex discrimination to exclude anti-LGBT discrimination unless it falls under so-called ‘gender stereotyping.’ I would submit that’s a distinction without a difference. All anti-LGBT discrimination is sex discrimination, period.”
Robinette reiterated his call for a revised antibias form. “I strongly encourage PHRC to immediately replace this form with a more progressive one,” he said. “If the agency truly wishes to be seen as welcoming and inclusive of the LGBT community, that’s the least it can do.”
In a related matter, PHRC executive director JoAnn L. Edwards last year sent a letter to local human-relations commissions throughout the state regarding the handling of LGBT antibias complaints. In the letter, Edwards repeatedly referred to trans people as “transgendered.”
Reese had no comment on whether Edwards would stop referring to trans people as “transgendered” or if she would send a revised letter to the local human-relations commissions with trans-friendly terminology.
Edwards couldn’t be reached for comment.