Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Saturday, April 29, 2017

SEPTA Not Subject to Philadelphia's Anti-Discrimination Laws

The Pennsylvania Supreme Court held this week that Philadelphia's Fair Practices Ordinance (FPO)—which provides broader protections against employment discrimination than Pennsylvania state law—has no application to SEPTA's actions as an employer within the City. 

Pennsylvania's Human Relations Act prohibits discrimination, harassment, and retaliation in employment on the basis of the same protected classes identified under federal law; sex, national origin, religion, disability, and age, to name a few. Philadelphia's FPO goes even further than state and federal law currently reach, extending the prohibition against discrimination, retaliation, and harassment to other characteristics, such as victims of domestic and sexual violence, gender identity, marital status, and sexual orientation. The question presented to the Supreme Court was whether SEPTA—as a Commonwealth entity—can be held to Philadelphia's stricter standard when acting as an employer within the City limits? 

The Court held that based upon the language used by the General Assembly in the law on which SEPTA was created, and the language in the Pennsylvania Human Relations Act, the intent of the General Assembly was to subject SEPTA to liability for violations of the Human Relations Act. But no equivalent language exists anywhere to suggest that the General Assembly chose to subject SEPTA to the more expansive scope of Philadelphia's FPO. You can read a copy of the Supreme Court's opinion here.

But for those employees who work for SEPTA and believe they have been subjected to harassment, discrimination, or retaliation on the basis of their gender identity or sexual orientation, all is not lost. Under Pennsylvania's Human Relations Act and federal law (Title VII)—laws that SEPTA is still subject to—these types of claims are becoming more readily accepted as a type of sex discrimination. Just recently, for example, the Seventh Circuit Court of Appeals in Hively v. Ivy Tech Community College of Indiana, explicitly held that "discrimination on the basis of sexual orientation is a form of sex discrimination," and on November 4, 2016, the U.S. District Court for the Western District of Pennsylvania held in EEOC v. Scott Medical Center that "discrimination on the basis of sexual orientation is a subset of sexual stereotyping... covered by Title VII's prohibitions on discrimination 'because of sex'."