Protection from discrimination based on sexual orientation is now expanded to government contractors and government employees.
On April 7, Pennsylvania Governor Tom Wolf signed two executive orders. The first order bars government contractors and entities that have been awarded government grants (grantees) from discriminating against workers on the basis of sexual orientation or gender identity. More specifically, the order will require that all businesses that contract with the state and all grantees use nondiscriminatory practices in subcontracting, hiring, promoting, and adhering to other labor matters. Governor Wolf also signed a second executive order that adds gender, sexual orientation, gender expression or identity, and AIDS or HIV status to existing state protections for any agency under the governor’s jurisdiction (i.e., workers in the executive branch of state government).
Both orders took effect immediately, although the order regarding state contracts and grants affects only future pacts with the state. Neither order creates a private right of action for individuals.
These measures occur against the backdrop of legislative movements in states like North Carolina, which has passed a law limiting the extent to which cities and municipalities can enact ordinances that extend categories protected from discrimination under the law. Governor Wolf, acting partially in response to the fact that a state bill granting the same rights statewide has been stalled in the Pennsylvania General Assembly, touted the new measures as a signal that the commonwealth is a welcoming and inclusive place.
The orders define “sexual orientation” clearly to mean “heterosexuality, homosexuality[,] or bisexuality.” “Gender identity or expression” is defined as “gender-related identity, appearance, mannerisms, expression[,] or other gender-related characters of an individual regardless of the individual’s designated sex at birth.”
The executive order regarding state contractors designates the Pennsylvania Department of General Services as the central agency responsible for developing and managing the commonwealth’s new programs aimed at eliminating gender and sexual orientation discrimination when awarding, selecting, or performing any contract or grant issued by commonwealth agencies. The Department of General Services will be responsible for developing uniform statewide standards for contract compliance programs. It is also tasked with: 1) creating plans, reports, and procedures to ensure consistency; 2) developing systems to measure effectiveness; 3) providing leadership and training to state agencies; and 4) preparing reports that relate to the order’s administration. The order requires contractors and grantees to have a written sexual harassment policy and that contractors or grantees ensure that their employees are aware of the policy to guarantee payment from the government under their contract.
Moreover, all commonwealth agencies are now required to establish, implement, and maintain compliance programs to ensure nondiscrimination in the award of state contracts and grants, nondiscrimination by those awarded contracts and grants in their hiring and treatment of employees, and nondiscrimination by those awarded contracts and grants in their award of subcontracts and supply contracts. Commonwealth agency leaders are responsible for ensuring that agency employees understand compliance programs, for creating compliance plans, for designating officials to supervise the agency’s contract compliance program, and for recommending sanctions to the secretary of general services, if appropriate, for lack of compliance with the commonwealth’s contracting programs.
The new measures are expected to affect tens of thousands of workers in the executive branch of state government and in companies that contract with the state. Companies that do business with the state should be aware that they now face additional scrutiny when it comes to their hiring and employment decisions with regard to LGBTQ individuals and are required to be mindful of these additional new measures going forward.