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In the Northeast, Only Pa. Lacks Law on Discrimination by Sexual Orientation

Published in Pittsburgh Post-Gazette
By Monica Disare

Laura Worden moved to Western Pennsylvania for a new job, rose to a high-level management position in her work, bought a house and has two children. But within weeks of revealing to her boss that she was living with a woman and not a man, Ms. Worden was terminated.

Though she contacted lawyers to help her case, there is no law that protects Pennsylvanians from sexual orientation discrimination.

Pennsylvania is the only state in the Northeast that does not have an anti-discrimination policy that includes sexual orientation, according to Ted Martin, executive director of Equality Pennsylvania. Certain municipalities and counties in Pennsylvania have laws that prohibit sexual orientation discrimination, including Allegheny County and the City of Pittsburgh. But approximately 70 percent of Pennsylvanians reside in an area without an anti-discrimination policy.

For people like Ms. Worden, a law prohibiting sexual orientation discrimination may have made a difference. After her termination, which occurred within the past few years, with no employment, a new house and two small children, Ms. Worden could not afford the legal battle that would have ensued without a clear-cut law to protect her, she said.

“It is a healing process that I am still not over,” Ms. Worden said. “When you lose your job, you lose a piece of who you are.”

Such legal difficulties are not uncommon, said attorney Tim O’Brien. Mr. O’Brien represented Brian Prowel, a gay man who was laid off from his job with Wise Business Forms in Butler in 2004 after working for the company for 13 years. Mr. Prowel was routinely called “Rosebud” and “Princess” and even found a pink, light-up, feather tiara with a package of lubricant jelly on his nale encoder, a machine he operated that encodes numbers and organizes business forms. But when the case began in 2006, a federal district court judge first ruled against Mr. Prowel on the basis that his discrimination related to sexual preference, which was not protected by law.

Mr. O’Brien appealed, and an appeals court told the judge to take another look at Mr. Prowel’s allegation that he was discriminated against — but on the basis of gender stereotyping, not sexual orientation. The two sides then settled for an undisclosed amount in 2009.

“I remember the case very distinctly as somebody that suffered an injury and wasn’t altogether clear that we were going to get a remedy for that,” Mr. O’Brien said. “Those cases really stand out in your mind because it’s unjust.”

As the law stands today, if Mr. Prowel had not been exhibiting effeminate qualities, he would not have had a case, Mr. O’Brien said.

“We have had instances where cases were not brought due to the fact that the only issue was sexual preference discrimination unrelated to gender stereotyping discrimination,” Mr. O’Brien added. Treating employees differently based on gender stereotyping — the assumption that a man should act masculine or that a woman must act feminine — is illegal under basic sex discrimination law. Many cases of sexual orientation discrimination also involve this gender stereotyping and can therefore be tried under sex discrimination.

To add to the difficulty of the Pennsylvania discrimination law, if the American Civil Liberties Union lawsuit challenging the ban on same-sex marriage in the state succeeds, Pennsylvania could have a dynamic unseen by any other state in the country. Though same-sex couples could be allowed to marry if the ACLU wins its case, they could still be denied jobs, apartments and mortgages based on their sexual orientation.

“If you can be fired for putting your wedding picture out on your desk, marriage equality is a pretty hollow victory,” said Mr. Martin of Equality Pennsylvania.

On July 9, the ACLU of Pennsylvania filed a lawsuit representing 10 couples and one widow as plaintiffs in a case challenging the state’s same-sex marriage ban. These couples contend that without marriage equality, their constitutional rights to due process and equal protection have been abridged.

It was the first case challenging same-sex marriage at the state level since the Supreme Court decided in the Windsor case that the Defense of Marriage Act, which defined marriage federally as between a man and a woman, was unconstitutional. Those that stand for the current law have pledged to fight this lawsuit, but it is possible that the suit will prevail, and that Pennsylvania will have same-sex marriage but no protection from sexual orientation discrimination.

“Without nondiscrimination, but allowing marriage equality in Pennsylvania … you would have to hide that you’re married [from] your employer. That’s scary,” said Mr. Testa.

Legislation has been introduced that would add sexual orientation to the list of protected classes in Pennsylvania. The legislation, House Bill 300 and Senate Bill 300, has been introduced repeatedly since 2001. This year is the seventh time that it has been introduced in a legislative session, but it has left committee only once.

The bill has not left the State Government House Committee, where it is sent, because the committee’s chairman, Rep. Daryl Metcalfe, R-Cranberry, will not allow it to, said state Rep. Dan Frankel, D-Squirrel, one of the bill’s lead sponsors.

It left committee once, in 2009, when Mr. Metcalfe was not the committee chairman, Mr. Martin said. Even then it did not make it to a full floor vote.

Mr. Metcalfe said he would not support the same bill this session.

“I think it’s ultimately language that will discriminate against the rights of individuals who have religious objections to that type of lifestyle and that type of behavior,” he said.

Though the bill has not reached a floor vote, 115 members of the Legislature are co-sponsoring it. Recent polling indicates that these bills have the support of the public. HB and SB 300 have a 72 percent statewide approval rating, according to a recent poll by the Susquehanna Polling and Research.

Though Mr. Metcalfe is a Republican, House Republican spokesman Steve Miskin contends Republicans are not blocking the legislation. “It’s not a partisan issue,” he said.

Of the 115 state senators and representatives currently sponsoring the bill, 13 are Republicans and 102 are Democrats, according to the website of Equality Pennsylvania.

Mr. Miskin pointed out that Republicans may vote for the bill even though they do not sponsor it.

One legislator who is not sponsoring the bill, state Sen. Randy Vulakovich, R-Shaler, said that though he believes marriage should remain between a man and a woman, he would consider voting for the anti-discrimination bill.

“I won’t say that I’ll support it,” Mr. Vulakovich said, “but I’m willing to participate in a discussion with an open mind.”

Though more Republicans may vote for the bill, Mr. Miskin said he personally does not see the need to make sexual orientation a protected class.

“The law that currently exists says you can’t discriminate,” Mr. Miskin said. “A person is a person; why do you need to label people?”

But advocates say that without passing the bill this session, Pennsylvania could be on the verge of extending marriage rights to gay and lesbian individuals without first providing necessary protection.

“It’s sometimes putting the cart before the horse,” said David Wing, the executive director of Families Like Ours, an organization that seeks to ensure both traditional and nontraditional families have the opportunity to foster and adopt children. “Simply giving people the right to marry does not add any policies or directives that would indicate that discrimination is simply not tolerated.”

It is difficult to tell how many people the policy change would affect. There are around 22,336 same-sex couples in Pennsylvania, according to an analysis of U.S. Census data by the California-based think tank The Williams Institute.

However, the state does not keep statistics on how many cases of sexual orientation discrimination exist because discrimination is still legal, said Shannon Powers, the director of communications for the Pennsylvania Human Relations Commission. In 2012, 11 allegations of sexual orientation discrimination came before the Pittsburgh Human Relations Commission.

Advocates hope that the discussion of marriage equality will help people realize that same-sex marriage is not the end of the road for lesbian, gay, bisexual and transsexual individuals in Pennsylvania.

“The media and perhaps people in the public have begun to think that marriage equality is the be all end all,” Mr. Martin said.

“That’s a highly important part to the picture, but being married doesn’t protect you from hate crimes, doesn’t protect you from bullying. There’s no law there.”

Mr. Frankel said that passing HB and SB 300 in this session is a “long shot.”

“It’s an embarrassment,” he said.

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