“We Are Not This” hashtag began trending after North Carolina HB-2 gained notoriety across the country for nullifying local ordinances that expanded discrimination protections for lesbian, gay, bisexual and transgender individuals. Politicians, leading CEOs and business executives of major companies, local governments, other states and activists have sent a clear message that they do not support the legislation and are calling for its repeal.
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Governor Tom Wolf has joined the long list of opponents and used the hashtag to take a stand last week when he signed two executive orders that expanded non-discrimination protections in Pennsylvania for lesbian, gay, bisexual and transgender individuals.
The first executive order, 2016-04 – Equal Employment Opportunity, provides protection to employees and applicants of state government agencies. The executive order provides that no agency under the Governor’s jurisdiction shall discriminate against any employee or applicant for employment on the basis of race, color, religious creed, ancestry, union membership, age, gender, sexual orientation, gender expression or identity, national origin, AIDS or HIV status, or disability.
The term “sexual orientation” is defined as heterosexuality, homosexuality or bisexuality. “Gender identity or expression” means the gender-related identity, appearance, mannerisms, expression or other gender-related characteristics of an individual regardless of the individual’s designated sex at birth.
The executive order also requires the Secretary of Administration to supervise the development, implementation and enforcement of the Pennsylvania’s equal employment opportunity programs. The Secretary of Administration is assigned with, among other things to:
- Developing equal employment opportunity policies, procedures, and training to ensure consistency and uniformity;
- Conducting periodic on-site reviews and audits of agency programs;
- Developing compliant investigation procedures and reviewing complaint investigation reports; and
- Designing and implementing monitoring and reporting systems to measure the effectiveness of agency equal employment opportunity programs.
The executive order further requires department and agency heads to designate an Equal Opportunity Officer to develop and implement the agency’s equal employment opportunity program.
The second executive order, 2016-05 – Contract Compliance, requires that the contracting processes with Pennsylvania agencies be nondiscriminatory and that all businesses contracting with the Pennsylvania or Pennsylvania use nondiscriminatory practices in subcontracting, hiring, promoting, and other labor matters.
The executive order also requires the Department of General Services to:
- Develop standards for contract compliance that ensures nondiscrimination by contractors and grantees;
- Provide training to agencies and assist with contract and compliance reviews; and
- Investigate and make reports of contracting programs and operations.
Pennsylvania contractors and grantees must also agree, as a condition of their contracts or agreements with the Commonwealth, not to discriminate in the award of subcontracts, supply contracts, hiring, promotion, or other labor matters on the basis of race, gender, creed, color, sexual orientation, or gender identity or expression. The new contract language will appear in all contracting documents under the nondiscrimination/sexual harassment clause.
Sending a Message
Although, Pennsylvania law does not currently protect all workers within the classes of individuals added by the Executive Orders, these Executive Orders send a clear signal to the legislature to finally pass the Pennsylvania Fairness Act. Governor Wolf explained that he is taking action to protect those he can and to send a signal to the country that Pennsylvania supports the lesbian, gay, bisexual and transgender community. These Executive Orders come as progress on the passage of the Pennsylvania Fairness Act, H.B. 1510, remains at a standstill. The Pennsylvania Fairness Act adds sex, sexual orientation, gender identity or expression to the classes protected by the Pennsylvania Human Relations Act. Although the Pennsylvania Fairness Act has broad, bi-partisan support and the support of Fortune 500 companies, 800 small businesses and local governments, the bill has stalled after being introduced last fall.
What should private Pennsylvania employers do now?
While the executive orders do not apply to all private employers – only those that contract with the Commonwealth – Pennsylvania employers should recall that recent state and federal court decisions have supported coverage of sexual orientation, gender identity or expression-related discrimination under Title VII. Employers should tread cautiously before making employment decisions on the basis of an employee or applicant’s sexual orientation, gender identity or gender expression. Pennsylvania employers should also continue to monitor the Pennsylvania Fairness Act to see if these recent Executive Orders will provide the momentum to get the legislature moving again!