On April 7, 2016, Pennsylvania Governor Tom Wolf signed two executive orders that expand protection from discrimination to certain employees within the Commonwealth. These executive orders come in response to the delay of the state legislature’s vote on the Pennsylvania Fairness Act, which would amend the Pennsylvania Human Relations Act to prohibit discrimination in employment, among other areas, against all individuals because of their sex, sexual orientation, gender identity or expression. The executive orders are effective immediately.
Protections for State Employees and Applicants
The first executive order, No. 2016-04 (“EO 2016-04”), prohibits any agency under the Governor’s jurisdiction from discriminating against an employee or applicant on the basis of their sexual orientation, gender identity, or gender expression. It also requires such agencies to ensure fair and equal employment opportunities. EO 2016-04 further prohibits sexual harassment or harassment based on sexual orientation, gender identity, or gender expression. The Bureau of Workforce Planning, Development, and Equal Employment Opportunity is tasked with evaluating the Commonwealth’s hiring and job retention practices to ensure compliance with EO 2016-04.
Protections for Employees of State Contractors and Grantees
The second executive order, No. 2016-05 (“EO 2016-05”), requires Commonwealth agencies to establish, implement, and maintain contract compliance programs to ensure Commonwealth contracts and grants are nondiscriminatory in three aspects:
- Nondiscrimination in the award of the contracts and grants;
- Nondiscrimination by those who are awarded contracts and grants in hiring and treatment of their employees; and
- Nondiscrimination by those who are awarded contracts and grants in their award of subcontracts and supply contracts.
While EO 2016-05 is effective immediately, it applies only to future contracts and grants. For all such contracts and grants, the awardees will be prohibited from discriminating in hiring, promotion or other labor matters on the basis of sexual orientation, gender identity, or gender expression. Awardees of such contracts will also be required to agree, as a condition of their agreement with the Commonwealth, not to discriminate in the award of subcontracts or supply contracts. EO 2016-05 further conditions payment or funding on contractors’ and grantees’ establishment of a written sexual harassment policy and assurances that they will make their employees aware of the policy.
Impact on Employers
State employers must immediately incorporate EO 2016-04’s prohibitions regarding discrimination against applicants or employees on the basis of sexual orientation, gender identity, or gender expression into their hiring and general employment policies and practices. Employers considering entering into a contract with the State or accepting grant funds from the State should familiarize themselves with the requirements of EO 2016-05, including the establishment of an appropriate sexual harassment policy and training employees on compliance with such a policy.
Leech Tishman’s Employment Practice Group has experience counseling employers on anti-discrimination and affirmative action obligations, including review and preparation of workplace harassment policies and procedures and conducting training for managers and employees on those policies. We can assist your organization in understanding the requirements of the executive orders and how to comply with them.
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