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Legislative Update – April 2016

On April 7, 2016, Governor Tom Wolf signed two Executive Orders to further non‑discrimination in state government regarding “sexual orientation” and “gender identity and expression” (collectively, “Gender Factors” ).  Executive Order No. 2016‑04 (the “Equal Employment Opportunity Order”) prohibits discrimination, affirms equal employment opportunity programs and prohibits sexual harassment or harassment in agencies of the Governor’s jurisdiction based on Gender Factors in addition to factors enumerated in Executive Order No. 2003‑10 which is rescinded by the Equal Employment Opportunity Order.  Executive Order No. 2016‑05 (the “Contract Compliance Order” and together with the Equal Employment Opportunity Order collectively, the “Executive Orders”) requires the Department of General Services to develop and manage Commonwealth agency programs to assure that the award, selection or performance of any contracts or grants by Commonwealth agencies are not subject to discrimination based on the Gender Factors, in addition to factors enumerated in Executive Order No. 2006‑02 which is rescinded by the Contract Compliance Order.

Governor Wolf signed the Executive Orders when the general public perceived discrimination by Gender Factors more clearly than before. First, the Governor expressly sought to distinguish Pennsylvania’s executive policies from a perceived tone of harassment of lesbian, gay, bisexual, transgender and queer (“LGBTQ”) people under the new North Carolina state law, the “Public Facilities Privacy & Security Act.”  That law requires people to use the bathrooms in schools and public buildings with gender labels that correspond to their “biological sex,” that is, the gender “stated on a birth certificate.”  Second, the Executive Orders are limited to agencies under the Governor’s jurisdiction, employees and applicants for employment in those agencies and vendors affected by the Executive Orders, not all businesses in the Commonwealth, but represent for the Wolf administration a model for broader policies. The Executive Orders signify that Pennsylvania is open for business to all persons and that all persons including those in the LGBTQ community are treated equally under Pennsylvania law. Third, on signing the Executive Orders, the Governor sought to have the General Assembly move from committee companion bills HB1510 and SB974, called the “Pennsylvania Fairness Act,” having a broader scope than the Executive Orders.

For example, HB1510 (the “Bill”) was referred to the Committee on State Government on September 8, 2015.  The Bill would amend the Pennsylvania Human Relations Act by including the Gender Factors in the list of prohibited discriminating factors.  Such an inclusion would amend part of the state policy on the right to freedom from discrimination in employment, housing and public accommodation.  Employers affected would be the Commonwealth, political subdivisions or boards, departments, commissions or school districts or any person employing four or more persons in the Commonwealth, including religious, fraternal, charitable and sectarian corporations with four or more employees in the Commonwealth.  The prohibited discriminations affecting real estate apply to the sale, lease, finance, denial or withholding, or the lending of money to acquire, construct, rehabilitate or repair any residential or commercial property.  Public accommodations, resorts, and amusements may not be refused, withheld or denied to any person based on, among other things, the Gender Factors.  Accordingly, the Bill would add the Gender Factors to existing factors related to prohibited discrimination regarding  public accommodations, employers and persons involved in lending and real estate.

© 2016 Robert J. Hobaugh, Jr.