Carlisle Borough Council will decide Thursday night whether or not to approve a proposed non-discrimination ordinance.
The key to any good decision-making process is knowing what is at stake, and we salute the borough’s Employment Relations and Community Participation Committee for allowing a discussion on this proposed ordinance to take place over the past four months. Clearly, the discussion has drawn strong responses for and against the ordinance.
Our role as a community newspaper is to make sure the facts stay in the conversation, in any conversation. That’s especially true for something like this that will involve interpretation of some laws as well as looking at precedents.
One of the keys to this debate is that Pennsylvania does not list sexual orientation, gender identity and gender expression as protected classes in its Human Relations Act, which was developed in 1955. That act does, however, give municipalities the right to establish their own hearing bodies for allegations of employment and property discrimination.
Here are the key facts in the debate as council heads toward its decision tonight:
Pennsylvania’s Human Relations Act currently provides protections for employment, housing and public accommodation based on race, color, familial status, religious creed, ancestry, age, sex, national origin, handicap or disability. It does not list sexual orientation, gender identity and gender expression as protected classes. Carlisle’s proposed ordinance would expand protection to those three groups.
The Pennsylvania HRC is empowered, by the 1955 law, to hear and adjudicate allegations of discrimination based on a number of factors, including race, religion and gender. This power has been interpreted to include gender presentation and sexuality, although it is not explicitly stated as such.
Inherent personal traits fall under a protected class, political affiliations do not. The KKK, neo-Nazis, Democrats or Republicans are not protected classes.
36 municipalities in Pennsylvania prohibit discrimination on the basis of sexual orientation, gender identity or both, including Harrisburg, York and Lancaster cities and Susquehanna Township in the immediate area. Carlisle’s ordinance is based off a similar ordinance in West Chester.
The proposed ordinance in Carlisle defines “public accommodation” as the ability of an individual to access food, beverages, lodging, resort or amusement “which is open to, accepts or solicits the patronage of the general public.” It does not apply to accommodations that are, by nature, “distinctly private,” which applies to private clubs like a VFW or Legion or a person’s home. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores. Nonprofit organizations such as churches are generally exempt from the law.
A similar ordinance was proposed in Carlisle in 2007-08 — the Carlisle Inclusive Community Initiative — by then-Mayor Kirk Wilson. It never received final approval.
There are no judicial powers in this proposed ordinance, only mediation for the four volunteer members of the Human Relations Commission. Any legal restitution would be adjudicated in the court system, or through a state or federal agency.
There is only one exception to the rules set forth in the proposed ordinance. “Notwithstanding any other provision of this ordinance, it shall not be an unlawful practice for a religious corporation or association to commit any of the acts,” the ordinance reads. Churches and schools with religious affiliations are generally exempt from the ordinance.
There is no personal religious exemption included in the ordinance. It is understood that a person’s individual religious freedoms are covered under the First Amendment of the US Constitution and any perceived infringement caused by this ordinance would be resolved in the appropriate court.
On Nov. 4, a federal judge in Pittsburgh sided with the U.S. Equal Employment Opportunity Commission (EEOC) position that Title VII of the Civil Rights Act of 1964 protects against discrimination based on sexual orientation. In the suit, the EEOC argued that a gay male employee was subjected to harassment because of his sexual orientation. Last year, the EEOC determined in Baldwin v. Foxx that sexual orientation discrimination is sex discrimination, thus workers are protected under Title VII from employment discrimination based on sexual orientation. In 2012, the EEOC determined in Macy v. Holder that gender identity discrimination is sex discrimination.
Given the current language of the ordinance along with an individual’s personal religious freedoms guaranteed by the First Amendment and borough voters’ ability to weigh in with a possible referendum under the new Home Rule laws, we believe the ordinance should be adopted as it appears to give the enumerated minority groups some reassurance that they will not be discriminated against in these important areas.