Colman Domingo
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The Kafkaesque Nightmare of Fighting Employment Bias

The Kafka-esque Nightmare of Fighting Employment Bias

Regardless of where you are, if you live in the United States of America you should be protected from workplace discrimination based on your sexual orientation, not just your gender. In my most recent sexual orientation discrimination case for a client, my client’s employer was located right on the county line between Philadelphia County and Whitemarsh Township in Montgomery County, Pa. However, since Pennsylvania law does not provide statewide protection from discrimination based on “sexual orientation,” my client had to file at the county level. 

Before bringing a lawsuit against an employer for discrimination, every employee is required by law to first exhaust administrative remedies with an antidiscrimination agency. An employee must show that they have a “right-to-sue” letter from the agency, or the lawsuit will be dismissed. 

Therefore, my client filed with the city of Philadelphia under the city’s explicit sexual orientation nondiscrimination ordinance. However, the employer moved to dismiss for lack of jurisdiction in Philadelphia, arguing that the employer was physically located on the other side of the county line, which was in Whitemarsh Township, Montgomery County.

My client then dutifully presented his complaint to the Whitemarsh Township Human Relations Commission, which advised that the employer “is not located in Whitemarsh Township.” Of course, the employer operates in Philadelphia.

My client went above the county level and “cross-filed” or “dual-filed” a complaint with the state-level Pennsylvania Human Relations Commission and the federal Equal Employment Opportunity Commission for gender discrimination as a form of sexual orientation discrimination.

The deputy director of compliance for Philadelphia explained that if we went to the Pennsylvania Human Relations Commission, “The Philadelphia Fair Practices Ordinance provides in Section 9-1112(4), ‘The Commission shall not accept a Complaint from any person who has filed with the Pennsylvania Human Relations Commission with respect to the same grievance.’”

The EEOC saw fit, the same day, to issue a notice to my client and to his former employer that since my client had previously filed a complaint of discrimination with Philadelphia, my client’s Pennsylvania Human Relations Commission complaint was a “duplicate” that “will be deleted.” 

Despite begging the EEOC not to delete the case, the EEOC deleted it and then instructed my client to “file a separate charge with PHRC” instead. The agency added, “I can’t tell you whether or not they will accept it.” At this point it has been almost six months since my client brought his initial complaint in Philadelphia in November. How much longer must my client and other LGBT people in Pennsylvania,wait for justice? 

This case is not anecdotal. LGBT employees who face discrimination in Pennsylvania face a Kafkaesque nightmare. Justice truly cannot be served by this patchwork of laws. It is all the more appalling for LGBT people to be denied access to justice by bureaucratic institutions whose purpose is supposed to be to stop discrimination in the first place.

In the United States today, if you are an African-American employee, you have a federal remedy for race discrimination. If you are a woman, you have a federal remedy for sex discrimination. However, currently, if you are an LGBT employee who does not live in a state or municipality that protects you against discrimination based on your sexual orientation or gender identity, you are forced to bring a gender discrimination claim instead.

Theoretically, to equate gender with sexual orientation in order to shoehorn protection is to accept a step down from full equality. Practically, for an attorney, it is more difficult to prove that your client was discriminated against because of sexual orientation since they were discriminated against because of gender” It is easier to prove that your client was simply discriminated against because they were gay, period.

Importantly, federal appeals courts have reached conflicting rulings on the issue of whether LGBT employees are protected by federal law against gender discrimination. Thus, an employer will typically move to dismiss an LGBT employee’s gender claim because the employer will argue that the claim truly alleges sexual orientation discrimination, not gender discrimination. 

As a result, an LGBT employee must ensure that they will not be out of court on an employer’s motion to dismiss the federal gender discrimination count, by filing a state-law sexual orientation count in the alternative to a federal gender discrimination count. It is essential for LGBT employees to therefore still turn to the patchwork of state-by-state antidiscrimination laws to gain full protection from sexual orientation discrimination.

However, while some states have laws protecting their residents from discrimination on the basis of their sexual orientation, many others do not.  In states that do not explicitly protect individuals from discrimination based on sexual orientation, like Pennsylvania, protection from sexual orientation discrimination is still determined on a county-by-county, city-by-city, or borough-by-borough basis.

Whether you are protected from discrimination should not depend on the state you live in. It should not matter either which county you live in. If you live in the United States of America, you deserve to be protected from discrimination based on your sexual orientation.

Even if the United States Supreme Court eventually extends the federal Civil Rights Act to include sexual orientation discrimination within the definition of gender discrimination, this is not a complete fix. It is not in the spirit of equal protection for some states and municipalities to prohibit sexual orientation discrimination per se, but for others to find it illegal only if it first qualifies as gender discrimination. Without a universal federal law protecting employees from sexual orientation discrimination, LGBT people might find protection on the separate basis of their gender, but will never be fully equal in the eyes of the law.

JUSTIN ROBINETTE is a Pennsylvania-based lawyer at Post & Post Attorneys at Law.  

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