Sexual Orientation Discrimination Laws in Pennsylvania

Federal law does not explicitly prohibit employment discrimination based on sexual orientation. Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) covers race, color, religion, sex, and national origin, but does not mention sexual orientation. In 2020, the U.S. Supreme Court in Bostock v. Clayton County held that discrimination based on sexual orientation may constitute sex discrimination under Title VII in certain circumstances, but this interpretation remains legally contested and inconsistently applied across federal courts.

The Equal Employment Opportunity Commission (EEOC) has taken the position that sexual orientation discrimination can violate Title VII as sex discrimination, but enforcement is uneven. Title VII applies to employers with 15 or more employees. Remedies under Title VII include back pay, reinstatement, compensatory damages (capped in many cases), and attorney fees. However, relying on Title VII for sexual orientation protection is riskier and less straightforward than explicit state protections. Many workers cannot safely rely on federal law alone, making state protections critical.

Pennsylvania law provides explicit and comprehensive protection for sexual orientation through the Pennsylvania Human Relations Act (43 P.S. § 951 et seq.). This state law is substantially stronger than federal law because it directly and unambiguously covers sexual orientation as a protected class, without requiring recharacterization as sex discrimination.

The PHRA applies to employers with 4 or more employees, a lower threshold than Title VII's 15-employee requirement. This means many small employers in Pennsylvania cannot escape coverage. The law prohibits discrimination in all aspects of employment: hiring, firing, advancement, compensation, job training, and any other term, condition, or privilege of employment. 43 P.S. § 955(a) explicitly lists sexual orientation as a protected characteristic alongside race, color, religion, sex, national origin, and disability.

Pennsylvania's law is significantly broader than the current federal approach in several ways. First, it provides an explicit statutory right that does not depend on recharacterizing discrimination as sex discrimination. Second, the 4-employee threshold means small businesses are covered, whereas federal Title VII requires 15 employees. Third, Pennsylvania courts and the PHRC have consistently and unambiguously applied this protection since the law was amended in 1992 to include sexual orientation.

Remedies under Pennsylvania law include back pay (wages lost from discrimination), front pay (future lost wages if reinstatement is impractical), compensatory damages for emotional distress and harm to reputation, and attorney fees and costs. 43 P.S. § 959(e) authorizes the PHRC to order affirmative relief, including reinstatement or hiring. Penalties and damages are not capped under Pennsylvania law, making remedies potentially more substantial than under federal law. The PHRC can also issue cease-and-desist orders and post-discrimination monitoring requirements.

Employer coverage: 4 or more employees (vs. 15 under federal Title VII).

Filing deadline: 180 days from the discriminatory act to file a charge with the Pennsylvania Human Relations Commission.

Statute of limitations: The unlawful practice must have occurred within the preceding 180 days at the time of filing.

No cap on compensatory damages under Pennsylvania law (unlike many federal remedies).

The Pennsylvania Human Relations Act contains several important exceptions and limitations. Religious organizations and employers with a bona fide occupational qualification (BFOQ) related to religion are exempt from certain provisions, though this exemption is narrowly construed and does not apply to sexual orientation discrimination.

Union membership and union referral requirements are permitted when based on genuine apprenticeship or training programs, though unions cannot discriminate in membership based on sexual orientation. The law does not require employers to take action regarding harassment or discrimination by non-employees (such as customers or independent contractors) unless the employer knew or should have known and failed to take corrective action.

At-will employment is preserved under Pennsylvania law, meaning employers can still terminate employees for lawful reasons unrelated to sexual orientation. However, retaliation for opposing a discriminatory practice, filing a complaint, or participating in a PHRC investigation is illegal. 43 P.S. § 959(g) prohibits retaliation, and retaliation claims have a separate, often longer effective period for relief.

Private clubs and social organizations with fewer than 4 employees may be exempt depending on their structure and function. Additionally, bona fide seniority or merit systems, when applied uniformly, are permitted even if they have disparate impact, provided they were not designed to discriminate. Federal contractors must comply with both Pennsylvania law and Executive Order 11246 (which prohibits federal contractor discrimination based on sexual orientation), creating overlapping obligations for covered employers.

Step 1: Document the Discrimination

Begin immediately documenting all instances of discriminatory treatment. Keep detailed records including dates, times, locations, what was said or done, who was present, and how the conduct affected you. Save all emails, texts, performance reviews, and other written communications that show differential treatment or hostile comments based on sexual orientation. Note your job title, compensation, responsibilities, and any changes after discriminatory incidents. If possible, ask witnesses to provide their own written account of what they observed. Store copies of all documentation in a personal secure location (not just work systems) and keep backup copies at home. Photograph or scan documents and consider uploading to secure cloud storage.

Step 2: Report Internally and Preserve Evidence

Report the discrimination to your employer's human resources department or manager, depending on company policy and your comfort level. Follow the employer's anti-discrimination policy and grievance procedure exactly as written, even if you believe it will be ineffective—this may be required to preserve claims. Provide written notice (email is acceptable) describing the discriminatory conduct, dates, and how it affected your employment. Keep a copy of your internal complaint. Many employers require internal complaint before external filing, and documentation of this step strengthens your claim. Do not immediately resign unless the conduct is severe; continuing to work (while documenting ongoing issues) shows you did not accept the conduct. However, if you reasonably believe you face immediate danger or severe retaliation, consult an employment attorney before proceeding.

Step 3: File a Charge with the Pennsylvania Human Relations Commission

You must file a charge with the Pennsylvania Human Relations Commission (PHRC) within 180 days of the discriminatory act. The PHRC is the state agency that enforces the Pennsylvania Human Relations Act. File online at www.phrc.pa.gov or submit a paper charge form by mail. You can also file in person at PHRC regional offices (locations listed on the website). The charge must include your name, address, telephone number, and email; the employer's name and address; a description of the discriminatory conduct; the date(s) it occurred; and identification of any witnesses. Do not wait until day 180—file as soon as reasonably possible after the incident. Include all relevant details but be concise. You do not need an attorney to file, and filing is free. The PHRC will mail you confirmation and assign an investigator. Keep this confirmation letter in your records.

Step 4: The PHRC Investigation Process

After you file, the PHRC will send a copy of your charge to the employer, who has up to 30 days to file a response. The PHRC's investigator will contact you and the employer to gather facts, interview witnesses, and request documents. The investigation typically takes 3 to 6 months but can take longer if the case is complex. You will be asked to provide all documentation you have collected—emails, texts, performance reviews, witness statements, and a detailed timeline. The investigator will also interview the employer's representatives and may interview your coworkers. The PHRC operates on a "no-fault" basis, meaning your status as at-will employee does not prevent you from winning. Once investigation is complete, the PHRC issues a determination. If the PHRC finds probable cause that discrimination occurred, it attempts to conciliate (negotiate a settlement) between you and the employer. If conciliation fails, the case can proceed to a hearing before an administrative law judge or be sent to court.

Step 5: Consult an Employment Attorney

Consider consulting an employment attorney as soon as you recognize discriminatory treatment, not just after filing. An attorney can evaluate the strength of your case, explain your options (internal complaint, PHRC filing, or litigation), and advise whether filing immediately or waiting serves your interests. Many employment attorneys work on contingency (no upfront cost), paid from your settlement or judgment. Before the PHRC investigation concludes, an attorney can help you prepare documentation, draft a settlement demand, and negotiate with the employer's counsel. If the PHRC finds probable cause and conciliation fails, you have the right to an administrative hearing, and attorney representation is highly advisable. Alternatively, you may pursue a civil lawsuit in Pennsylvania state or federal court for violations of the PHRA. An attorney specializing in employment law and discrimination is essential for litigation. The PHRC also provides free consultation, and you can ask for a referral to low-cost legal services if cost is a barrier.