Under proposed guidance posted on its website April 28, the Pennsylvania Human Relations Commission will investigate LGBTQ-related antibias complaints, despite the lack of an LGBTQ-inclusive statewide antibias law.
The guidance notes that Pennsylvania’s antibias law covers sex discrimination, and multiple courts have ruled that anti-LGBTQ discrimination is a form of sex discrimination. However, neither the U.S. Supreme Court nor the Pennsylvania Supreme Court has issued a definitive ruling on the subject.
The commission investigates antibias complaints in the areas of employment, housing, public accommodations, commercial property and education.
If complaints aren’t settled at the commission level, they sometimes proceed to state or federal courts for adjudication.
The proposed guidance states: “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 LGBTQ individuals do not comply with sexual stereotypes and that adverse action(s) against an LGBTQ individual due to that person’s failure to comply with sexual stereotypes amounts to discrimination based on sex. Accordingly, it is the position of the Pennsylvania Human Relations Commission that it will take and investigate sex-stereotyping claims filed by LGBTQ individuals.”
The guidance also emphasizes that LGBTQ complaints will be treated on a case-by-case basis.
Additionally, the guidance notes that the commission continues to support legislation that would expand the state’s Human Relations Act to specifically cover anti-LGBTQ discrimination.
Justin F. Robinette, a Berwyn-based civil-rights attorney, intends to submit written comments regarding the guidance.
“The commission’s complaint-intake form must be immediately revised to clarify that the commission considers sexual-orientation discrimination to be a form of sex discrimination,” Robinette told PGN. “The intake form is widely available to the public, including online. It’s very disappointing that the guidance doesn’t call for such a revision. It’s also not clear whether the commission will allow discriminators to claim ‘religious freedom’ to wriggle out of a case. But at least it puts discriminators on notice that the commission has some interest in protecting the LGBTQ community. Time will tell whether the commission handles our community’s complaints in a competent manner.”
Stephen A. Glassman served as chairperson of the Pennsylvania Human Relations Commission from 2002-11. He issued this statement about the proposed guidance:
“I am hopeful that bringing attention to the discrimination that exists against LGBTQ people will encourage the legislature to finally pass an amendment to the Pennsylvania Human Relations Act that adds these protected classes to the existing non-discrimination laws in Pennsylvania. Meanwhile, we’ll all be watching the commission closely with regard to how it actually processes LGBTQ complaints. And we’ll look forward to favorable court decisions with regard to sexual-orientation discrimination being considered a form of sex discrimination.”
The commission is accepting public comments about the proposed guidance through May 26. Comments may be emailed to Christina Reese, communications director for the commission, at [email protected] or phoned in at 717-783-8266.
As of presstime, Reese didn’t have a comment on whether the commission’s complaint-intake form will be revised to clarify that sexual-orientation discrimination is a form of sex discrimination.
PHRC chairperson M. Joel Bolstein issued this statement: “PHRC has a statutory duty to protect the citizens of the commonwealth from acts of unlawful discrimination. The commission is requesting public comment on its draft guidance documents, which allows LGBTQ individuals to have their claims investigated as sex-discrimination claims. Taking this action affords people a remedy to unlawful discrimination that has already been made available by federal courts and federal administrative agencies who interpret statutes similar to the ones enforced by PHRC. We would urge anyone who believes that this issue is important to submit comments to PHRC by May 26, 2017. All comments will be reviewed by the commission prior to voting on whether to adopt the proposed guidance documents as final.”
Rue Landau, executive director of the Philadelphia Commission on Human Relations, told PGN her agency, along with the Mayor’s Office of LGBT Affairs, will be submitting comments to the PHRC.
“We are encouraged to see that the PA Commission is memorializing its position on handling LGBTQ cases in formal guidance for the agency,” she said in a statement provided to PGN. “For real progress to be made, however, the PA legislature must immediately amend the PA Human Relations Act to include explicit protections from discrimination based on actual or perceived sexual orientation and gender identity in employment, housing, public accommodations and education. LGBTQ people in Pennsylvania have waited long enough. The time for change is now.”
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