Pennsylvania Anti-Discrimination Laws: Sexual Orientation and Gender Identity

By Sydney Normil (Summer Associate)

Currently, federal and state (Pennsylvania) anti-discrimination laws protect against discrimination on the basis of sex (male vs. female), but not sexual orientation or gender identity/expression.  However, a number of Pennsylvania municipalities have enacted ordinances prohibiting discrimination on the basis of sexual orientation and/or gender identity or expression.  The list of municipalities is always changing, and the protection offered by each municipality varies.  For example, one municipality may protect against transgender identity discrimination while another municipality may protect only against sexual orientation discrimination.  It is necessary to consult with the individual municipality to determine which protections are available.

Filing a Complaint

An aggrieved individual can file a “complaint” with its municipality for discriminatory acts performed against them in employment, housing or public accommodation matters occurring within the borough or city limits. A complaint is a form that requests general information of both the person filing and of the accused employer and a summary of the alleged discriminatory acts. Each municipality may maintain a different form and course of procedure for investigating such complaints. For example, the complaint form may need to be printed and mailed or hand delivered, or the complaint form may be submitted online. This list contains the names of the municipalities and their respective commissions, and hyperlinks to the municipalities’ websites, complaint forms or guides to filing a complaint, if available. (Last updated July 2014)

Municipalities:

Abington Township – Abington Township Human Relations Commission – The complaint form can be found here.

Allegheny CountyAllegheny County Human Relations Commission – The complaint form can be found here.

City of AllentownHuman Relations Commission of the City of Allentown – The complaint form can be found here.

City of Bethlehem – Bethlehem Human Relations Commission

Bristol BoroughBristol Borough Human Relations Commission

Bucks CountyBucks County Human Relations Council

Cheltenham TownshipCheltenham Township Human Relations Commission – The complaint form can be found here.

Borough of ConshohockenBorough of Conshohocken Human Relations Commission

Borough of Dowington – Dowington Human Relations Commission

Borough of DoylestownDoylestown Human Relations Commission – The complaint form can be found here.

City of Easton – Easton Human Relations Commission

East Norriton TownshipEast Norriton Township Human Relations Commission

Erie CountyErie County Human Relations Commission – The guide to filing a complaint can be found here.

City of FarrellCity of Farrell Human Relations Commission

City of Harrisburg– Harrisburg Human Relations Commission

Haverford Township – Haverford Human Relations Commission

City of LancasterLancaster City Human Relations Commission – The complaint form can be found here.

Lansdowne Borough –  Lansdowne Human Relations Commission

Lower Merion TownshipLower Merion Township Human Relations Commission – The complaint form can be found here.

Jenkintown BoroughJenkintown Borough Human Relations Commission

Borough of NewtonNewtown Human Relations Commission

Borough of New HopeNew Hope Human Rights Commission

City of PhiladelphiaPhiladelphia Commission on Human Relations – The complaint form can be found here.

City of PittsburghPittsburgh Commission on Human Relations – The complaint form can be found here.

City of PittstonPittston Human Relations Commission

City of ReadingReading Human Relations Commission

City of ScrantonHuman Relations Commission of the City of Scranton

Springfield Township – Springfield Township Human Relations Commission

State College BoroughState College Borough Human Relations Commission – The guide to filing a complaint can be found here. The complaint form can be found here.

Susquehanna TownshipSusquehanna Township Human Relations Commission

Swarthmore Borough Swarthmore Human Relations Commission – The guide to filing a complaint can be found here.

Upper Merion TownshipUpper Merion Township Human Relations Commission – The guide to filing a complaint can be found here.

Borough of West Chester –West Chester Human Relations Commission

Whitemarsh TownshipWhitemarsh Township Human Relations Commission

City of YorkCity of York Human Relations Commission

Protection from Sexual-Orientation Discrimination in Pennsylvania

 

By:  Alaura Maglio (Summer Associate)

Question: Does Whitewood v. Wolf Provide Any Protection from Sexual-Orientation Discrimination in Pennsylvania?  

In Whitewood v. Wolf, a federal judge struck down a Pennsylvania law that limited the definition of marriage to that between “one man and one woman.”  In his momentous opinion, Judge Jones also declared that classifications based on sexual orientation are subject to “intermediate scrutiny.”   As a result, when a state or local law classifies people (i.e. discriminates) on the basis sexual orientation, the government must prove that this classification is substantially related to an important government purpose.  This is quite a difficult standard to meet.

As this language indicates, to receive legal protection for discrimination, there must first be an applicable law.  It is important to understand that unfair or discriminatory treatment, on its own, is probably not an illegal practice.   For instance, we know that employers employees aged 40 or older are protected against being fired because of their age.  However, this is not just because discrimination is a bad practice; it is because a federal law, the Age Discrimination in Employment Act (ADEA), prohibits such practice.  Had Congress not passed the ADEA, there would be no law barring employers from firing employees based on their age, and such discrimination would not be illegal.

In sum, Whitewood only announced how rigorously a court must examine the purpose of an existing law.  There is currently no statewide Pennsylvania law that protects against sexual orientation discrimination.  Judge Jones did not create a law prohibiting discrimination based on sexual orientation (nor could he have done so).

There is, however, pending legislation in Pennsylvania that would provide some of these protections.  Senate Bill 300 seeks to add “sexual orientation” and “gender identity or expression” to the protected categories under the Pennsylvania Human Relations Act (PHRA).  If Senate Bill 300 were to pass, it would allow persons discriminated against in employment, housing or public accommodation because of their sexual orientation or gender identity or expression to seek redress under the PHRA.   For example, if an employer fired an employee because of her sexual orientation, she could bring a claim to the Pennsylvania Human Relations Commission (PHRC).   If the former employee proved to the PHRC that she was terminated because of her sexual orientation, she could receive redress as provided by the Act.  Such redress includes: compensation for loss of work, reinstatement to her former position, and an order to the employer to pay a civil fine.  However, keep in mind that there is no law in Pennsylvania that regulates purely private conduct.  Outside of employment, housing, or public accommodations, Senate Bill 300 would not protect against or provide remedies for discrimination.

In sum, Whitewood represents an important step toward providing increased protections to the LGBT community by requiring courts to closely examine potentially discriminatory laws.  However, the court’s opinion does not provide recourse for discriminatory practices, and it also represents the conclusion of just one judge.  Such protections can be provided at a state level by the passage of laws like Senate Bill 300.

Designating Your Same-Sex Spouse as the Sole Beneficiary in Your Will

 

By David K. Goldfarb (Summer Associate)

Question: If your will designates your same-sex spouse as the sole beneficiary, will your relatives have a valid (and potentially successful) claim against your estate?

Estate planning can be a very stressful time for all married couples, especially when children and other relatives need to be considered.  However, under normal circumstances, one need not be overly concerned with the validity of his will and the possibility of relatives bringing claims against a surviving spouse that has been designated as the sole beneficiary under that will. It is typically very difficult to challenge a will. Approximately 99% of wills are enforced without any issues. Courts interpret wills as the voice of the testator (the person who wrote the will). Since that person is deceased and no longer able to express his wishes, courts are extremely hesitant to alter the terms of the will.

As a general rule, a party must have an interest in order to challenge a will, and that interest must be substantial, direct, and immediate. It is very likely that a court would conclude that close relatives, like children, have a substantial, direct, and immediate interest in your will. Thus, your relatives would likely be able to bring a claim against your estate. However, such a claim is unlikely to prevail.

As an initial matter, Pennsylvania law expressly allows you to disinherit (deprive someone of inheritance) every individual other than your spouse.  Furthermore, your relatives, or any other challenger, would have a very limited number of grounds for bringing a claim against your same-sex spouse. Most grounds address the procedural process for the creation of a will and are easily addressed by retaining an attorney to assist in your estate planning. The two substantive grounds are that the individual lacked the mental capacity necessary for creating a valid will and that the will was procured by fraud, forgery, or undue influence.

In order to challenge a will based on mental capacity, the challenger must prove that the testator did not understand the consequences of making the will at the time of the will’s creation. Adults are presumed to have the necessary mental capacity required for the creation of a will, thus this argument is usually limited to the context of an individual diagnosed with dementia who revises their will towards the end of their life.

In order to challenge a will based on fraud, forgery or undue influence, the challenger essentially must prove that the will was not created by the deceased or that the deceased was forced via threats to create the will. No matter the situation, it would be wise to have several witnesses, including an attorney, present during the creation of your will. Most states require a typed hard copy of the will signed by the testator in the presence of at least two adult witnesses who are not named as heirs in the will.

It is advisable to consult with a Trusts & Estates attorney as part of your estate planning to ensure that no potential claimant could prevail against your same-sex spouse in challenging the will.

 

First Read on Same-sex Spouse Health Benefits Post Windsor

 

by:  John H. Wilson

The issues of same-sex spousal rights to benefits is now largely resolved; however, substantial questions about same-sex spouse health and welfare benefits remain.

To see the full story, click on the link below:

http://www.bipc.com/files/media/misc/11e4d4de9ce2b59482c528e2d1c3f3a0.pdf

John H. Wilson is a Shareholder of Buchanan Ingersoll & Rooney PC whose practice is primarily focused on employee benefits, ERISA and deferred compensation matters.