City of Philadelphia: Employment Discrimination

Philadelphia law protects an individual’s basic right to fair and equal treatment in employment.

The laws protects against discrimination by former, current and potential employers, labor unions and employment agencies.

Employment discrimination may happen when employment opportunities are denied outright, such as when someone is rejected for a new job or promotion.

It may also occur in other ways, such as when someone is given less favorable employment terms or condition than others or when a physical barrier or other issue makes services inaccessible to someone who has a disability.

Age

Age discrimination refers to situations in which how old an individual determines whether or not the person has access to certain terms, conditions or services. The FPO does not offer protection against age discrimination in public accommodation. In housing and real property, all ages are protected from discrimination. In employment, protections are limited to individuals 40 years of age or older; persons under age 40 are not protected from age discrimination.

Age discrimination in employment may include discrimination among individuals in the protected group (i.e., among individuals age 40 and over) as well as between individuals inside and outside the protected group (i.e., between individuals above and below age 40). Thus, a 55-year-old can allege an ADEA violation where he is replaced by a 48-year-old.

Ancestry

Ancestry refers to the nation, country, tribe or other identifiable group of people from which a person descends. It also can refer to the physical, cultural or linguistic characteristics of the person's ancestors.

Ancestry discrimination may often overlap with but is not always synonymous with national origin discrimination. For example, a person of Chinese ancestry who grew up in Trinidad could claim discrimination could claim Chinese ancestry but Trinidadian national origin.

Color

Color discrimination refers to discrimination based on shade or hue of skin, such as

Light-skinned
Dark-skinned

It is important that a variety of hues exist in every ethnic and racial group; therefore color discrimination is not always synonymous with race discrimination and can even occur within a single racial group. For example, a light-skinned Black worker could pursue a discrimination case based on the actions of her darker skinned supervisor.

Disability

Disability refers to a physical or mental impairment that substantially limits an individual’s ability to perform a major life activity; a major life activity is broadly defined to include basic tasks (like walking, reading, bending, and communicating) as well as major bodily functions (such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).

The protections against disability discrimination cover individuals who fall into one of the following categories:

An individual who has a disability: a person who has a physical or mental impairment that substantially limits one or more major life activities.
An individual with a history of disability: a person who previously a physical or mental impairment that substantially limits one or more major life activities.
An individual who is regarded as having a disability: a person who is believed to have a physical or mental impairment that substantially limits one or more major life activities, regardless of whether that belief is correct.

The protection against disability discrimination includes a duty to provide reasonable accommodations that would allow an individual with a physical or mental disability to access and obtain full enjoyment of employment, public accommodations or housing and real property. The protections against disability discrimination in employment also include restrictions on conducting a pre-offer medical examination or making pre-offer inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of a disability and requirements that medical records be maintained separately and treated as confidential except under narrow circumstances, including informing a supervisor about a necessary restriction or accommodation.

Domestic or Sexual Violence Victim Status

Domestic or sexual violence refers to any act of domestic violence, sexual assault or stalking as defined by the Philadelphia Code or the sections of the Pennsylvania Code related to rape, incest, sexual abuse of children, unlawful contact with a minor, sexual exploitation of children, statutory sexual assault, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault or indecent assault. The FPO protects victims of these offenses from discrimination in employment, public accommodations, and housing and real property.

Ethnicity

Ethnicity refers to membership in a particular cultural group. It is defined by shared cultural practices, including but not limited to holidays, food, language, and customs. Ethnicity may often overlap with ancestry, and like ancestry discrimination, ethnic discrimination may often overlap with but is not always synonymous with national origin discrimination.

Familial Status

In housing, familial status refers to the presence of children under the age of 21 domiciled in a household. The children may be part of the household because of birth, adoption or assignment of legal guardianship over the child. A person who is known to be in the process of seeking legal guardianship of a child and who consequently experiences discrimination is covered by protected for familial status. A single pregnant woman and a foster family in the process of seeking custody of children are also protected from discrimination on the basis of familial status.

In employment and public accommodations, familial status discrimination refers more broadly to discrimination against an individual based on his/her responsibilities to care for or support a family member, regardless of the family member’s age. The FPO defines family member to include an individual’s spouse, Life Partner, parents, grandparents, siblings, and in-laws. Family member also includes children, grandchildren, nieces and nephews, including through adoption or other dependent or custodial relationship.

Gender Identity

As defined by the FPO, gender identity refers both to an individual’s self-identification as male or female as well as to other’s perception or interpretation of an individual’s gender as male or female. Gender identity discrimination includes discrimination against: (1) an individual born male who may have a strong self-image and self-identification as a woman; (2) an individual born female who may have a strong internal self-image and self-identification as a man; (3) someone born male who self-identifies as a man but is perceived by others as feminine; and (4) someone born female who self-identifies as a woman, but is seen by others as masculine.

“Transgender” is an umbrella term that includes anyone whose gender identity does not match society’s expectations of how an individual who was assigned a particular sex at birth should behave in relation to their gender. The term includes, but is not limited to:

Pre-operative, post-operative and non-operative transsexuals who may or may not use hormones: individuals whose gender identity is perceived to conflict with the sex assigned to them at birth, and who may or may not begin or continue the process of hormone replacement therapy and/or gender confirmation surgery.
Intersex individuals: individuals born with chromosomes, external genitalia, and/or an internal reproductive system that varies from what is considered “standard” for either males or females.
Persons perceived to be androgynous: individuals whose gender identity is not completely male or female. This includes individuals who do not conform to expectations of a specific gender role and individuals who express both masculine and feminine qualities.
Other gender variant, gender non-conforming, or gender different individuals: individuals exhibiting gender characteristics and identities that are perceived to be inconsistent with their sex assigned at birth.

Gender identity discrimination may also constitute sex discrimination based on the Complainant’s failure to conform to sex stereotypes, based on the Complainant’s change in sex, or based on the argument that gender identity is part of one’s sex both as a factual and legal matter.

Marital Status

Marital status refers to the state of being one of the following:

Single
Married
Separated
Divorced
Widowed
Life Partner, whose relationship has been verified and certified by the Commission

Marital status discrimination includes discrimination based on based on assumed characteristics of people in particular marital status groups.

National Origin

Similar to ancestry, national origin refers to “the country where a person was born, or, more broadly, the country from which his or her ancestors came.” National origin discrimination includes discrimination based on place of origin or on the physical, cultural, or linguistic characteristics of a national origin group.

Sometimes, national origin discrimination overlaps with race discrimination, and in such cases, the basis of discrimination can be categorized as both race and national origin. For example, discrimination against a Native American may be race and/or national origin discrimination.

National origin discrimination includes discrimination on the basis of accent, manner of speaking, or language fluency.It also may include rules requiring employees to speak only English in the workplace or rules requiring multilingual employees to perform more work than unilingual colleagues without additional compensation. Proof of citizenship requirements may be a form of national origin discrimination if they have a disparate impact on particular national origin groups.

Race

Race discrimination includes discrimination on the basis of physical characteristics associated with a particular race, such hair texture, facial features and hair color. Race is associated with the following groups:

White: A person having origins in any of the original peoples of Europe and the Middle East
Black/African American: A person having origins in any of the Black racial groups of Africa
Native Hawaiian/Pacific Islander: A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands
Asian: Persons having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam
American Indian/Alaska Native: A person having origins in any of the original peoples of North and South America (including Central America), and who maintain tribal affiliation or community attachment
Bi-racial or Multi-racial: All persons who identify with more than one of the above five races.

Individuals of Hispanic or Latino ethnicity, or any ethnicity, may belong to one or more racial group. Race may be related to color, but is not synonymous with color.

Religion

Religious discrimination refers to discrimination based on an individual’s religious observances, practices or beliefs. It also included discrimination based on moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views, regardless of how widespread the particular beliefs or practices are.

Among the established and organized faiths protected from religious discrimination are:

Catholic
Jewish
Muslim
7th Day Adventist
Protestant, including Baptist, Lutheran, Presbyterian
Sikh
Atheist

While views that are part of a moral or ethical system are protected from religious discrimination, social or political views are not similarly protected. For example, a professor who describes his religion as a “creed requiring scrupulous honesty in the pursuit of scientific knowledge” is not protected from religious discrimination. Similarly, the ideology of the Ku Klux Klan, a belief in the freedom to have extra-marital relationships and a “personal religious creed” requiring someone to eat cat food are not protected from religious discrimination.

Religious discrimination may manifest itself as a preference for or against members of a particular religious group. It may also be evidenced as an intolerance for observation of religious laws regarding dress, dietary habits, and work schedules. The protection against religious discrimination also includes a duty to provide reasonable accommodations for an individual's religious practices, such as leave to observe religious holidays, unless doing so would cause an undue hardship.

Retaliation

Retaliation refers to any materially adverse action, taken against someone who engages in conduct that the FPO protects, that is likely to dissuade a reasonable person from making or supporting a complaint of discrimination.

The type of conduct that the FPO protects generally falls into one of the following categories:

Opposition: opposing a practice made unlawful by the FPO
Participation: filing a complaint, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing involving discrimination on a basis that the FPO protects. This includes testifying or presenting evidence as part of an internal investigation pertaining to an alleged EEO violation.

“Protected conduct” under the FPO includes all aspects of trying to oppose or remedy discrimination, such as: filing a discrimination complaint; threatening to file a complaint; complaining about, opposing or protesting perceived discrimination against yourself or another employee; assisting someone else in opposing discrimination; giving evidence or testimony to an investigator; refusing to engage in conduct that is believed to be unlawful; and refusing to assist an employer (by testimony or otherwise) in discriminating.

An individual is protected from retaliation for opposition to discrimination as long as s/he had a reasonable and good faith belief that s/he was opposing an unlawful discriminatory practice, and the manner of opposition was reasonable. An individual is protected against retaliation for participation in the discrimination complaint process, however, regardless of the validity or reasonableness of the original allegation of discrimination.

The protections against retaliation also prohibit discrimination against someone closely related to or associated with an individual who has engaged in protected activity. For instance, an employer may not retaliate against an employee whose spouse or friend has engaged in protected activity by firing the employee.

Sex

Sex encompasses both the biological differences between men and women and the cultural and social aspects associated with masculinity and femininity (i.e., gender).

Sex discrimination refers to discrimination based on one of the following categories:

Male
Female
Pregnancy, child birth or related medical conditions: in cases involving alleged discrimination based on pregnancy, child birth or other related medical conditions, the relevant comparison group is other individuals similarly unable to work
Sex stereotyping: failing to conform to gender-based expectations or norms
Change in sex: the fact that an individual intends to transition, has transitioned or is in the process of transitioning from one gender to another.

Sex discrimination includes both sexual harassment, where the prohibited conduct is sexual in nature, and sex-based harassment that is not of a sexual nature, sometimes called gender-based harassment. In certain instances, sexual orientation discrimination claims can be pursued as sex discrimination claims under a sex stereotyping theory when the alleged conduct results from the Complainant’s actual or perceived failure to conform to societal norms associated with his or her sex (i.e., sex stereotyping). In addition, gender identity discrimination claims may constitute sex discrimination when the alleged conduct results is based on sex stereotyping or change in sex.

It is important to note that employment policies and procedures that apply only to one sex may be non-discriminatory if the policies and procedures are based on a bona fide occupational qualification (BFOQ) for the job in question.

Sexual Orientation

Sexual orientation refers to discrimination based on one of the following categories:

Homosexual (gay or lesbian)
Heterosexual (straight)
Bisexual

Sexual orientation discrimination includes discrimination based on perception of an individual’s sexual orientation, whether that perception is correct or not. Sexual orientation discrimination may also constitute sex discrimination based on sex stereotyping when the alleged conduct results from the Complainant’s actual or perceived failure to conform to societal norms associated with his or her sex.

Employment Discrimination

Age