Philadelphia Passes Ordinance Expanding LGBT Rights

by Pepper Hamilton LLP
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On April 25, 2013, Philadelphia City Council passed the LGBT Equality Bill, Bill No. 130224, which Philadelphia Mayor Michael Nutter signed into law on May 9, 2013. This ordinance amends various titles of the Philadelphia Code “to provide for equality of treatment of all persons in the City of Philadelphia regardless of gender identity or sexual orientation.”

The LGBT Equality Bill expands upon the protections that had already been afforded to transgender individuals under the Philadelphia Fair Practices Ordinance, which the City amended in May 2002 to prohibit discrimination based on gender identity in public accommodations, housing, and employment. Under the Fair Practices Ordinance, “employer” is defined broadly and now includes “any person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse, life partner or children.”

Several provisions of the LGBT Equality Bill affect employers that conduct business in Philadelphia. These provisions include:

  • providing for the definition of “life partnership” and amending the definition of marital status to include life partners, former life partners, and surviving life partners
  • prohibiting an employer from failing to permit employees to dress consistently in accordance with their gender identity
  • ensuring the right of transgender individuals to request name and gender changes on any forms under the control of that employer, to the extent permitted by law
  • providing a tax credit to eligible employers who offer health benefits to same-sex couples, life partners and transgender employees, and
  • providing a tax credit for eligible employers who make health insurance coverage available for “transgender care,” which means “medically necessary treatment for gender dysphoria and gender identity disorder, including office visits, laboratory tests, prescription drugs, hormone treatments, counseling, and transitional surgeries.”

The LGBT Equality Bill states that employers do not qualify for a tax credit if they offered these same health benefits and coverage in the three tax years immediately prior to the application for a tax credit.

Philadelphia is not alone in its effort to increase legal protection for LGBT individuals. Sixteen states (California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington) and the District of Columbia have laws prohibiting discrimination against transgendered people, and at least 150 cities and counties have passed their own laws prohibiting gender identity discrimination.1

Municipalities have also taken the lead in passing laws prohibiting discrimination based on sexual orientation, which is still not a protected class under federal law or under the laws of 29 states. While currently there is no federal law prohibiting discrimination based on sexual orientation or gender identity, the U.S. Senate and the House of Representatives recently reintroduced the Employment Non-Discrimination Act that would prohibit discrimination on the basis of sexual orientation and gender identity. Despite the absence of a federal law protecting LGBT employees from discrimination, the Equal Employment Opportunity Commission (EEOC)’s strategic enforcement plan (passed in December 2012) provides that the EEOC intends to continue its focus on the protection of LGBT persons under Title VII. The EEOC has taken the position that LGBT discrimination is covered by Title VII’s existing prohibitions against sex discrimination. For example, in Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC took the position that discrimination against an individual because that person is transgender constitutes discrimination because of sex in violation of Title VII.

For now, Philadelphia employers should educate their supervisory employees on this new ordinance and confirm that their antidiscrimination policies include sexual orientation and gender identity.

Endnotes

1 American Civil Liberties Union, Know Your Rights - Transgender People and the Law: Discrimination in Employment, Housing, Public Places, and Schools (Apr. 24, 2013), available at http://www.aclu.org/translaw.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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