The protections afforded to transgender employees in Pennsylvania are increasing but remain uncertain. In August 2018, the Pennsylvania Human Relations Commission (“PHRC”) issued guidance to elaborate on the meaning of “sex” under the Pennsylvania Human Relations Act (“PHRA”). The PHRC concluded that sex discrimination does encompass claims of discrimination based on sexual orientation, transgender transition, gender identity, and gender expression. This guidance mirrors the Equal Employment Opportunity Commission Enforcement (“EEOC”) guidance, which also interprets gender identity and sexual orientation discrimination to be included in sex discrimination. Despite the EEOC’s guidance, the status of transgender discrimination on the federal level is not conclusive. There are no federal laws that afford protection, circuit courts are not unanimous, and the Department of Justice stated in 2017 that Title VII of the Civil Rights Act “does not prohibit discrimination based on gender identity per se.” Consequently, developing questions revolve around what this means for employers, where to go from here, and whether bathroom accommodations for transgender employees are necessary.
The most recent developments of bathroom accessibility—especially at the federal level—address the rights of students while at school. There is an upward trend of recognizing transgender students’ rights to utilize the bathroom associated with their gender identity as opposed to their biological sex. On May 24, 2018, a panel of third circuit judges affirmed the constitutionality of a Pennsylvania school district policy that permits transgender students to use the bathrooms and locker rooms that correspond with the students’ gender identity. This decision follows suit with several other circuit court decisions.
So how does this translate to bathroom accessibility in the workplace? As of now, it really does not, but Pennsylvania employers should be mindful of the increasing requirement of bathroom accommodations. Although Pennsylvania has not enacted legislation to protect transgender individuals at work, Pennsylvania state employers, or recipients of state grants and contracts doing business with the state, are prohibited from discriminating against their employees based on sexual orientation, gender expression, or gender identity pursuant to an Executive Order issued by Governor Wolf in April 2016. Nineteen states, including New Jersey, and the District of Columbia have enacted legislation recognizing rights for transgender individuals in the employment context. Some states, and municipalities as indicated below, have specifically addressed the issue of bathroom accessibility.
Despite the lack of state legislation, municipalities including Allentown, Philadelphia, Pittsburgh, Lancaster, Scranton, and Harrisburg have acted unilaterally, implementing protections that prohibit discrimination based on sexual orientation, gender identity or expression, or both. Notably, Lehigh County did the same in February 2018. As a result, affected employers must make changes to create an all-inclusive environment to protect themselves and employees.
Although the future of state-wide legislation is indeterminate, Pennsylvania employers should consider what actions need to be taken, not only to prevent legal recourse but also to protect the rights of transgender employees. Updating employee handbooks to include protections for gender identity, actively educating employees, or conducting sensitivity training are all steps to avoid discrimination issues. Additionally, employers should consider whether transgender employees will be able to use the bathroom associated with their gender identity, experts advise this option, or to opt for gender-neutral facilities. While Pennsylvania and the federal government remain in limbo on the extension of transgender rights, employers should choose to be proactive and anticipate legislation that will one day call for change in the employment world.
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