SEPTEMBER 2005 Pennsylvania Employment Law Employers Be Mindful — Know Your Local Discrimination Laws INTRODUCTION Recently, the Commonwealth Court in Hartman v. City of Allentown, gave an overwhelming endorsement of local municipal ordinances prohibiting discrimination in employment. Most employers know of the protections against discrimination in federal and state laws. In addition, employers must be cautioned to remember local municipal ordinances proscribing discrimination. Many municipal anti-discrimination ordinances establish independent human relations commissions and extend this protection beyond the classes protected by federal and state law. Where the ordinance establishes an independent human relations commission, a complainant may file a claim with either the state human relations commission or the local human relations commission. Employers continue to challenge such ordinances’ extension of the discrimination protections, but have been unsuccessful. In the most recent decision to address this issue, the Commonwealth Court of Pennsylvania upheld the City of Allentown’s antidiscrimination ordinance. Hartman v. City of Allentown, 2005 Pa. Commw. LEXIS 452 (August 11, 2005). In Hartman, business and rental property owners challenged Allentown’s ordinance which prohibits discrimination in housing and employment based on, among other things, sexual orientation or gender identity. These classifications are not protected under the state’s anti-discrimination statute – the Pennsylvania Human Relations Act (“PHRA”). The plaintiffs unsuccessfully claimed that the ordinance exceeded the municipality’s authority under the Home Rule Charter Law and was preempted by the PHRA. This case should remind employers not to overlook local ordinances, which often protect classifications beyond those protected by state and federal law. HOME RULE CHARTER LAW The Pennsylvania Constitution allows municipalities to adopt optional forms of government, such as the home rule charter adopted by Allentown or other optional charters adopted by cities of the third class, like Harrisburg, or cities of the first class, like Philadelphia. The form of government adopted by a municipality determines the scope of its power. A municipality with a home rule charter, like Allentown, has broad power because it is authorized to perform any function that is not restricted by the Constitution, statute or its home rule charter. One statutory provision restricting this power is Section 2962(f) of the Home Rule Charter Law, which provides that “[a] municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, … except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities. …” Municipalities like Harrisburg, which have adopted a different form of government, are not subject to this restriction and, therefore, are not prohibited from placing such restraints on business. DISCRIMINATION LAWS The PHRA prohibits discrimination based on “race, color, familial status, religious creed, ancestry, age, sex, national origin, handicap or disability, use of guide or support animals because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals.” Section 2(a) of the PHRA, 43 P.S. § 952(a). Allentown’s ordinance expands these protected categories to include sexual orientation and gender identity. In its entirety, the ordinance makes it unlawful to discriminate based on “[r]ace, color, religion, national origin, ancestry or place of birth, sex, gender identity, sexual orientation, disability, marital status, familial status (in housing only), age or use of a guide or support animal because of blindness, deafness or physical disability of any individual ... or because of the disability of an individual with whom the person is known to have an association.” Codified Ordinances of the City of Allentown, Article 181, § 181.02. Allentown’s ordinance is not unlike the ordinances of other municipalities in Pennsylvania. For example, Harrisburg, Philadelphia, Lancaster, York, Scranton, Erie County and Pittsburgh currently have similar ordinances that prohibit employment discrimination based on sexual orientation and/or gender identity. HARTMAN V. CITY OF ALLENTOWN A. ORDINANCES NOT PROHIBITED BY HOME RULE CHARTERS In Hartman, the Commonwealth Court noted the anomaly that would result if some municipalities could enact anti-discrimination ordinances while municipalities that adopted the home rule, which is designed to grant broad powers to the municipality, were prohibited from doing so. The court prevented such a result by reading the Section 2962(f) restriction narrowly. It ruled that this limitation on a home rule municipality’s regulation of business applies only to the imposition of affirmative duties on businesses. Unlike ordinances requiring businesses to take certain action, the City of Allentown’s ordinance simply seeks to protect citizens from discrimination. Therefore, Section 2962(f) did not prevent the City of Allentown from enacting the anti-discrimination ordinance. A case challenging an ordinance in Philadelphia, a city of the first class not governed by the Home Rule Charter Law, also lends support for upholding such an ordinance in Allentown and in non-home rule municipalities. See Devlin v. City of Philadelphia, 862 A.2d 1234 (Pa. 2004). In Devlin, the Pennsylvania Supreme Court recognized that Philadelphia could 2 SEPTEMBER 2005 prohibit discrimination based on sexual orientation. It explained that the authority to enact antidiscrimination ordinances derives from the municipality’s police powers. Through its police powers, municipalities can maintain vitality and order in response to changing social, economic and political conditions. Commonwealth Court applied this reasoning to conclude that Allentown’s antidiscrimination ordinance was a permissible exercise of police power. B. ORDINANCES NOT PREEMPTED BY STATE DISCRIMINATION LAW The court then addressed the issue of preemption, which is based on the principle that, as an agent of the state, a municipality cannot act contrary to the state. Challengers claimed that the PHRA preempted Allentown’s ordinance. In deciding this preemption challenge, the court was faced with a decision that promised to have wide-ranging implications for municipalities across the Commonwealth that have adopted anti-discrimination ordinances. Because of the potential impact of the decision, the Pennsylvania Human Relations Commission (“PHRC”) participated in the case as a “friend of the court.” PHRC took the position that the PHRA does not preempt Allentown’s ordinance. PHRC explained that local anti-discrimination ordinances are consistent with the purpose of the PHRA and the public policy in Pennsylvania to eliminate the evils of discrimination. Additionally, the PHRA neither expressly nor implicitly preempts protection based on sexual orientation or gender identity. The court gave deference to the position advanced by PHRC as the sole agency in charge of interpreting and enforcing the PHRA. Accordingly, the Commonwealth Court concluded that the PHRA does not preempt local legislation. It found that there is no inherent conflict between Allentown’s ordinance and the PHRA; enforcement of the PHRA is not impeded by the ordinance’s prohibition on additional categories of discrimination; and the PHRA was not intended to be exclusive legislation in the field of antidiscrimination. In fact, the PHRA expressly provides that political subdivisions may establish local human relations commissions with powers and duties similar to those of the PHRC. The court also took this KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP opportunity to clarify earlier precedent and reiterate the proposition that a municipality “generally has authority to enact anti-discrimination laws pursuant to its police powers.” CONCLUSION Employers should be aware of local ordinances that may affect their employment policies and practices. More and more municipalities are enacting ordinances and expanding anti-discrimination protection. As the court noted, ordinances prohibiting employment discrimination based on sexual orientation or gender identity are consistent with expanding protection for these classifications in other areas, such as Pennsylvania hate crimes legislation. Municipalities may also choose to designate other protected classifications such as marital status, genetic predisposition or carrier status, military service, possession of a GED, height, weight or other characteristics. Depending upon the municipality in which each employer is located, as municipalities expand anti-discrimination protection in employment, compliance with only state and federal law may not be enough. Amy L. Groff agroff@klng.com 717.231.5876 Jacqueline Jackson-DeGarcia jjacksondegarcia@klng.com 717.231.5877 If you have questions or would like more information about K&LNG’s Employment and Labor practice, please contact one of our lawyers listed below: Boston Henry T. Goldman Mark D. Pomfret 617.951.9156 617.261.3147 hgoldman@klng.com mpomfret@klng.com Dallas Jaime Ramón 214.939.4902 jramon@klng.com Harrisburg Carleton O. Strouss 717.231.4503 cstrouss@klng.com London Paul Callegari +44.20.7360.8194 pcallegari@klng.com Los Angeles Thomas H. Petrides Paul W. Sweeney, Jr. 310.552.5077 310.552.5055 tpetrides@klng.com psweeney@klng.com Miami April L. Boyer Carol C. Lumpkin Michael C. 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