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PHRC Clarifies That It Will Accept Allegations of Sex-based Discrimination Based on Sexual Orientation, Transgender Identity, Gender Transition, Gender Identity and/or Gender Expression

August 29, 2018

By Karen Baillie

On August 2, 2018, the Pennsylvania Human Relations Commission (PHRC) issued two guidance documents clarifying that the Commission will accept for investigation charges that allege discrimination based on sex that include allegations of discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and/or gender expression. In short, the Commission clarified that it interprets the term “sex” to include sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and/or gender expression.

The PHRC investigates claims of sex-based discrimination under both the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Educational Opportunities Act (PFEOA). The PHRA covers discrimination in the context of employment, public accommodation, housing and commercial property. The PFEOA covers discrimination in the context of post-secondary education.

Sex has long been a protected class under both the PHRA and the PFEOA, and Pennsylvania courts have held that both laws must be applied consistently with federal anti-discrimination law. However, the federal circuit courts are split on the issue, with the Second and Seventh Circuits holding that Title VII prohibits sexual orientation discrimination, and the Eleventh Circuit holding that it does not.

According to the PHRC, the guidance “is neither an adjudication nor a regulation” but rather intended to cover the manner in which the PHRC will exercise discretion in accepting complaints, conducting investigations, and adjudicating cases.

Read the full guidance documents here:
Guidance on Discrimination on the Basis of Sex Under the Pennsylvania Human Relations Act
Guidance on Discrimination on the Basis of Sex Under the Pennsylvania Fair Educational Opportunities Act

For more information regarding this or other labor and employment issues, please contact Karen Baillie, a member of Schnader’s Labor and Employment Practices Group. 

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