On May 2, 2023, the Pennsylvania House of Representatives approved House Bill No. 300, which intends to prohibit discrimination in Pennsylvania based on sex, sexual orientation, or gender identity or expression. KingSpry’s Employment Law Chair, Attorney Avery E. Smith is monitoring the pending legislation and outlines what you need to know, should HB 300 become law.
Controlling Law
Enforced by the Pennsylvania Human Relations Commission (“PHRC”), the Pennsylvania Human Relations Act (“PHRA”) covers discrimination in employment, housing, commercial property, education, and public accommodations.
The PHRA currently prohibits practices of discrimination due to race, color, religious creed, ancestry, age or national origin by employers, employment agencies, labor organizations and others.
Judicial Influence
HB 300 was proposed after the landmark decision in Bostock v. Clayton County (2020), in which the United States Supreme Court ruled that an employer cannot discriminate against an individual because of their sexual orientation or gender identity.
Though the decision in Bostock provides greater protection of individuals’ rights, it does not prevent someone in Pennsylvania who identifies as LGBTQ+ from being denied housing, education, or access to public accommodations due to their identity. As a result, Representative Malcolm Kenyatta proposed HB 300 to the Pennsylvania House of Representatives.
Intent
The intent of HB 300 is to prohibit discrimination in Pennsylvania based on sex, sexual orientation, or gender identity or expression.
What will Change?
Should HB 300 become law, the PHRA will be amended to “[prohibit] certain practices of discrimination because of race, color, religious creed, ancestry, sex, sexual orientation, gender identity or expression, age or national origin by employers, employment agencies, labor organizations and others as defined”.
HB 300 will further define “sexual orientation” as “an individual’s physical, romantic or emotional attraction to individuals of the same or different gender”[1], and “gender identity or expression” as “an individual’s gender-related identity, appearance, mannerisms, expression or other gender-related characteristics, regardless of the individual’s designated or perceived sex.”
Practically, however, even without the passage of HB 300, individuals in the Commonwealth have the ability to file complaints with the PHRC should they face discrimination due to sex, sexual orientation, and/or gender identity or expression, as well as all other currently protected classes. This is because in 2022, the PHRC adopted a regulation, whereby it interpreted the word “sex” in Pennsylvania’s Anti-Discrimination Act to include a broader meaning. The regulation expanded the definition of sex to include: sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression. In other words, the PHRC will investigate claims of sexual discrimination and harassment on the basis of gender identity and/or sexual orientation.
Though it is uncertain as to whether HB 300 will be approved by the Pennsylvania Senate, employers should understand that practically speaking, discrimination based upon sexual orientation and/or gender identity is illegal under the Pennsylvania Anti-Discrimination Act. Employers should proactively examine current workplace practices and policies with the assistance of their legal counsel.
If passed, HB 300 will become law and take effect in thirty (30) days.
Should you have any questions regarding the potential impact of House Bill No. 300, KingSpry’s Employment Law Group is prepared to assist you.
