Pennsylvania LGBT employee rights in flux as courts weigh in on bias.

• Position: In the Spotlight

An estimated 9 million adults in the United States are lesbian, gay, bisexual or transgender. As a practical matter, if you employ more than a few workers, you probably have at least one who doesn't identify as heterosexual.

How LGBT employees are treated by employers and co-workers may make the difference between having a productive, civil work environment or one full of strife. Plus, there's the risk of litigation--a significant risk because the EEOC and gay-rights groups are actively challenging employers that discriminate.

A significant number of test cases are working their way through federal courts, testing whether Title VII's prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity.

The EEOC takes the position that Title VII does prohibit discrimination on the basis of sexual orientation and gender identity. In the 3rd Circuit, which governs Pennsylvania employers, several federal courts agree with the EEOC's position.

However, the U.S. Department of Justice has taken the opposite position, and has challenged the EEOC's interpretation by intervening in specific cases. Ultimately, the U.S. Supreme Court will have to decide the Title VII question.

Pennsylvania state law

Pennsylvania is not among the 24 states (plus the District of Columbia) that explicitly cover sexual orientation in anti-discrimination laws. However, many large and mid-size Pennsylvania cities have their own anti-discrimination ordinances that do protect LGBT employees.

Recently, the Pennsylvania Human Relations Commission, which enforces the Pennsylvania Human Relations Act, has entered the fray. In late summer 2018, PHRC issued guidance that makes its position clear: The LGBT community is protected from discrimination under Pennsylvania's version of Title VII's sex discrimination provisions.

The PHRC's Guidance on Discrimination on the Basis of Sex Under the Pennsylvania Human Relations Act states that the "prohibitions contained in the PHRA and related case law against discrimination on the basis of sex... prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression."

Thus, in the PHRC's interpretation, transgender identity and other associated characteristics are protected.

The PHRC says that it will now accept sex discrimination complaints based on this expanded definition of the term.

The...