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Why the Supreme Court’s decision on LGBTQ workers is a huge deal for Pennsylvania

The high court ruled a landmark civil rights law protects Americans from discrimination in the workplace based on gender identity and sexual orientation.

Jasmine Smith marching down Market Street during Philly's 2019 LGBT Pride Parade. On Monday, the Supreme Court ruled a civil rights-era law protects workers from discrimination on the basis of sexual orientation or gender identity.
Jasmine Smith marching down Market Street during Philly's 2019 LGBT Pride Parade. On Monday, the Supreme Court ruled a civil rights-era law protects workers from discrimination on the basis of sexual orientation or gender identity.Read moreJOSE F. MORENO / Staff Photographer

It is now illegal for a Pennsylvania employer to fire someone for being gay or transgender.

The U.S. Supreme Court ruled Monday that civil rights laws governing employment discrimination include LGBTQ workers. That has a seismic impact in Pennsylvania, one of about two dozen states that didn’t have such protection on the books.

LGBTQ Pennsylvanians have for decades lobbied state officials to protect queer people from discrimination in employment settings based on sexual orientation or gender identity. While a number of municipalities across the state, including Philadelphia, have laws that protect LGBTQ workers, those don’t extend to all the half-million gay and transgender Pennsylvanians.

Here’s what Monday’s Supreme Court decision means for the region.

What did the court rule?

In what some experts considered a surprise ruling from a court that tilts conservative, the Supreme Court interpreted Title VII of the 1964 Civil Rights Act to extend employment protections to LGBTQ people.

The law has always prohibited discrimination on the basis of race, color, religion, national origin, and sex. The court in essence considered whether sex includes gender identity and sexual orientation. Justices heard arguments in three cases, two of which argued that sexual orientation is a subset of sex. The third argued the same for gender identity.

This decision differed from past rulings in favor of LGBTQ rights because it was a question of interpreting existing civil rights law, not a constitutional matter. Lawyers for the Trump administration argued that if elected officials had wanted to add sexual orientation and gender identity to the list of protected classes, Congress could have passed a law doing so — something it has repeatedly declined to do.

» READ MORE: Supreme Court rules LGBT people are protected from job discrimination

In a 6-3 ruling, liberal justices were joined in the majority by Chief Justice John G. Roberts Jr. and Justice Neil M. Gorsuch, who wrote the majority opinion.

What’s the impact in Pennsylvania?

Pennsylvania’s nondiscrimination law, the Human Relations Act, has never specifically protected employment discrimination on the basis of gender identity or sexual orientation. Like the federal law, it says simply that a person can’t be discriminated against on the basis of sex.

More than 50 municipalities, including Philadelphia and Pittsburgh, have ordinances that protect LGBTQ people, creating a patchwork of laws, meaning a person could in theory be fired for being gay or trans in one town and not the next.

In addition, state employees are protected from discrimination based on sexual orientation because of an executive order signed in 1975 by Gov. Milton J. Shapp. In 2003, Gov. Ed Rendell extended those protections to transgender state employees via another executive order.

As far as employment goes, that patchwork of laws doesn’t exist anymore — with the Supreme Court’s ruling, firing someone on the basis of gender identity or sexual orientation violates civil rights law across the nation.

» READ MORE: Why Pennsylvania has a patchwork of laws that leave some LGBTQ workers vulnerable to firing

That doesn’t mean the work is over, said Jason Landau Goodman, executive director of the Pennsylvania Youth Congress, which has fought for years for LGBTQ nondiscrimination laws. He said the General Assembly must expand on the Supreme Court’s decision by passing legislation that implements and enforces it.

“To have this decided in the highest court of the land is absolutely historic and deeply valuable,” he said. “However, we also need the legislature to reflect that change, so it’s unquestionable how those protections are implemented on a daily basis.”

What might that implementation look like?

Currently, the state Human Relations Commission accepts complaints of discrimination on the basis of gender identity or sexual orientation from Pennsylvanians who live in municipalities without those protections.

But it’s not a law. The commission handled those complaints based on a rule that could have been rescinded at any time, particularly if the state were governed by an administration less sympathetic to LGBTQ causes.

Advocates for nondiscrimination legislation want the General Assembly to pass legislation outlining how the Human Relations Commission should handle complaints by LGBTQ Pennsylvanians. That would mean the guidelines likely couldn’t be rescinded by a future administration without being repealed by the legislature.

What’s it mean for employers?

Many companies, especially those that operate in multiple jurisdictions, including Philadelphia or New Jersey, have policies prohibiting discrimination on the basis of gender identity or sexual orientation, said Lori Armstrong Halber, a partner at the Reed Smith law firm’s labor and employment division in Philadelphia.

Halber said companies without such protections should amend their policies to include sexual orientation and gender identity within the classes protected from discrimination in their workplace.

Is there a religious exemption?

There’s a ministerial exception in federal law that protects religious institutions from applying nondiscrimination laws when employing “ministers.”

What’s unclear is how the court’s decision Monday could impact private employers. Gorsuch wrote that the court wasn’t opining on how religious freedom questions — say, a private business that doesn’t want to employ a gay or transgender person — would be handled.

Halber said employees are entitled to reasonable accommodations for religious beliefs “subject to undue hardship,” but that standard is relatively low. She said, for example, an employer couldn’t impose on a female worker’s rights on the basis of her sex in order to accommodate another employee’s religious beliefs.

The high court has before it another case related to LGBTQ rights and religious freedom: Fulton v. City of Philadelphia, a case that involves LGBTQ foster parents being denied on the basis of religion.

» READ MORE: The U.S. Supreme Court will hear a Philadelphia dispute over same-sex foster parents

So are LGBTQ Pennsylvanians now entirely protected from discrimination?

No. Civil rights laws also protect discrimination in housing and public accommodations on the basis of sex, but Monday’s ruling was focused narrowly on employment and workplace discrimination. And last week, the Trump administration finalized a regulation erasing discrimination protections for transgender patients in health care.

What’s the ruling mean for New Jersey?

Not as much as Pennsylvania. While activists in the Garden State cheered the ruling, New Jersey’s nondiscrimination law has included sexual orientation as a protected class since 1991 and gender identity since 2006.