If Congress passes LGBT non-discrimination law, the fight must go on at state level

     (AP Photo/Matt Slocum, file)

    (AP Photo/Matt Slocum, file)

    If passed by the U.S. House, the Employment Non-Disctimination Act would prohibit workplace discrimination against lesbian, gay, bisexual, and transgender employees based on sexual orientation or gender identity. If the federal law passes, it is also necessary to pass similar measures at the state level.

    Since the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) earlier this month, the legislation is set to move onto the U.S. House of Representatives, where its passage is less certain. If enacted, ENDA would protect lesbian, gay, bisexual, and transgender (LGBT) employees by prohibiting workplace discrimination based on their sexual orientation or gender identity.

    Contrary to common belief, no such protections currently exist at the federal level for LGBT workers. The same is largely true at the state level: Only 21 states explicitly prohibit discrimination based on sexual orientation, and only 17 of those provide protections based on gender identity. Consequently, LGBT people can be legally fired, denied a promotion, and harassed on the job on account of their sexual orientation or gender identity in the vast majority of jurisdictions, including Pennsylvania.

    According to the Human Rights Campaign, supermajorities of Republicans and Democrats support ENDA, as do more than two-thirds of voters and majorities in each of the 50 states. Given this unprecedented support, ENDA’s passage is ultimately inevitable.

    States must play a role, too

    However, successful passage of the law would not signal the end of the campaign to protect LGBT employees. It is also necessary to pass similar measures at the state level, because claims and damages may be more limited under federal law.

    Pennsylvania currently has the opportunity to pass such measures with Pa. House and Senate Bills 300, introduced in the legislature earlier this year. If passed, the two pieces of legislation, like ENDA, would protect employees from workplace discrimination on the basis of sexual orientation and gender identity. They would also protect LGBT individuals from similar discrimination in housing and public accommodations.

    Both New Jersey and Delaware have already enacted such anti-discrimination laws, demonstrating once again that the commonwealth is behind its neighbors in the tri-state area. However, it is time for Pennsylvania catch up to them, because federal legislation such as ENDA does not fix everything, as illustrated by the differences between current employment discrimination laws at the federal and state levels.

    Federal vs. state protections

    In general, state employment discrimination statutes parallel federal law, such as Title VII of the Civil Rights Act of 1964, by protecting individuals from discrimination on the basis of race, color, religion, sex, national origin, disability and age. Accordingly, employment discrimination plaintiffs can bring their claim in either federal court, where the federal law would apply, or in state court, where the state law would apply. Sometimes plaintiffs will bring their claim simultaneously in both, depending on the particular circumstances of their case. Where a plaintiff decides to bring a claim often depends on which venue is more advantageous, which turns on particular differences between federal and state laws, such as the remedies available.

    For example, a plaintiff may choose to pursue an employment discrimination claim in state court because state laws typically provide for broader damages than federal laws, which often cap the amount of money that may be recovered in a lawsuit. However, in a state like Pennsylvania that does not have a law prohibiting employment discrimination on the basis of sexual orientation or gender identity, LGBT plaintiffs do not have the benefit of making a decision about choice of venue. This will continue to be the case even after ENDA passes, unless Pennsylvania passes protections for LGBT people at the state level.

    Along the same lines, federal law does not always offer protection to the same extent as state law. Taking ENDA as an example, for instance, the proposed law defines “employer” as a person who has 15 or more employees, while Pennsylvania’s antidiscrimination statute, the Pennsylvania Human Relations Act (PHRA), defines “employer” as a person who has four or more employees. Consequently, if an LGBT worker is employed at a smaller company, she would not be protected under federal law but potentially would be under Pennsylvania law — again, that is if Pennsylvania passes House and Senate Bills 300 to amend the PHRA to include sexual orientation and gender identity.

    At present, both bills have considerable support inside and outside of the capitol. Hopefully, this support will be enough to get them passed as soon as possible, because it is time for Pennsylvania to get with the program. ENDA should not be the end of the story — there is a role here for state law.

    Andrea Anastasi is a J.D. Candidate and Law and Public Policy Scholar at Temple University Beasley School of Law.

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