Every state in the Third Circuit now recognizes LGBT rights at work. Third Circuit not so much for now.


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It’s right there in the statute.

Under New Jersey and Delaware state law, you can’t discriminate against an employee based on his or her sexual orientation or gender identity.

Now, you won’t find the words “sexual orientation” or “gender identity” anywhere in the Pennsylvania Human Relations Act. But, starting this month, the Pennsylvania Human Relations Commission is treating both “sexual orientation” and “gender identity” as protected classes.

“Speak, English, Eric!”

LGBT discrimination is against the law in all three states in the tri-state area — at least according to the state agencies that administer each law.

A conflict with federal law?

Right now, there’s a dichotomy between state and federal law in the Third Circuit. As readers of the blog know, the Second and Seventh Circuits have recognized that the prohibition in Title VII of the Civil Rights Act against “sex” discrimination including discrimination based on “sexual orientation” too. The Sixth Circuit has also held that “sex” covers transgender employees.

But here in the Third Circuit, the existing precedent is that “Title VII does not prohibit discrimination based on sexual orientation.” (Although, one Western District of Pennsylvania judge concluded that the Third Circuit’s decision in Bibby v. Coca-Cola Bottling Co. is outdated.)

Except the law may change in the Third Circuit, and in many other jurisdictions around the country.

That is, the Supreme Court will have several opportunities this term to address LGBT rights under Title VII. The employer in the Sixth Circuit case I identified further up the page has asked the Supreme Court to review the Sixth Circuit’s decision. Ditto the employer in the Second Circuit case. Additionally, an employee who lost in the Eleventh Circuit is asking the Supreme Court for review of her case.

So, what should employers in the Third Circuit do?

Don’t discriminate against LGBT individuals.

That was easy.

I want to give a bit tip of my hat to Jacob Sitman who flagged the PHRC guidance for me. And for more on the new PHRC guidance, check out Phil Miles’s post at Lawffice Space.


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