Murky Details Delay Passage of Gender-Related Anti-Discrimination Ordinance

The first public review of the much-anticipated anti-discrimination proposal in Lower Merion was less sizzle than simmer, building into a two-hour long discussion of some of the deficiencies in the first draft.

In the end, a motion to advertise for passage the ordinance banning discrimination based on issues related to sexual orientation and gender was tabled, and a three-person subcommittee formed to take a second crack at the ordinance. Commissioners Brian Gordon, Philip Rosenzweig and President Bruce Reed will lead the rewrite.

Due to the presence of Stephen Glassman, Chair of the Pennsylvania Human Relations Commission, the Board of Commissioners' review of the proposal at the Sept. 15 meeting became at one point a lengthy question and answer with the state-level expert.

The proposal as drafted called for the township to create a "human relations commission" to hear and adjudicate complaints of discrimination based on sexual orientation, gender identity and gender expression. Pennsylvania has a state-level human relations commission, of which Glassman is the head, which already hears cases of discrimination. It does not review cases involving issues related to sexual orientation and gender because no state law sets up specific protections for members lesbian, gay, bisexual and transgender (LGBT) community.

Glassman recommended that the township create an ordinance that allows the local human relations commission to hear cases involving any type of banned discrimination, whether related to sexual orientation, age, race, etc. All 17 of the municipalities in Pennsylvania that adopted local human relations commissions to implement LGBT anti-discrimination laws also hear all types of discrimination through their commissions, Glassman said. By following the standard procedure, the township would be less likely to open itself up to legal challenges to the ordinance, which claim the provision creates preferential treatment for members of the LGBT community, rather than filling a gap in state law.

"Everyone needs protection at every level," Glassman said. "Should you choose to create a law that is only covering the LGBT community, I certainly would still support that, however, I do think it's important to recognize that every time you step outside of the more conservative approach, you risk a lawsuit."

In addition to the potential legal challenges, Glassman made several arguments why a comprehensive local commission would be beneficial to Lower Merion residents. He said that cases heard by local commissions tend to take half of the time then if they were filed at the state level, as well as save money and generally are more equitable and efficient for local residents. "If you are 80 and infirm and discriminated against based on age, or in a wheelchair and discriminated against based on disability, it's a lost easier to go to the township building that Harrisburg or Philadelphia (where cases are held)," said Glassman.

With the scope of the ordinance in question, the discussion amongst the commissioners, other than a detailed account of the first draft's deficiencies by Rosenzweig, moved away from the specifics of the exact proposal toward more philosophical points about what the ordinance should include.

In the original proposal, the commission held varying degrees of limitations on its powers. After determining that discrimination took place, the commission could issue cease and desist orders and the loosely defined power to "take such additional action as the commission deems appropriate," but could not award attorney fees to the wronged party or require the payment of a civil penalty.

Rosenzweig suggested for the rewrite that if attorney fees were to be paid, they should be paid to the winner regardless whether that person was the accused or accuser. Several other commissioners agreed with the idea. Corrective action will likely be limited to that which the state allows its own commission, which includes cease and desist and any remediation of wrongful acts, including compensatory damages, according to the board majority.

Unresolved issues for the second draft include a number of technicalities, and whether or not to go the route of drafting a comprehensive anti-discrimination ordinance. "I think we have to answer the question, how closely we want to queue to the state statute itself?" Reed said.

The way the commission was originally designed, after receiving a claim of discrimination, the board would reach out to both parties involved and attempt to have them resolve the dispute through voluntary mediation. Gordon said that in talks with an employment lawyer, he believes a large percentage of cases could be resolved in mediation. "In many cases, what the aggrieved litigants really want is an opportunity to be heard in a civil setting, to speak and have a response about the issue at hand," Gordon said. "Many issues are resolved in that context."

If mediation was unsuccessful, the commission could elect to use "expanded procedures," including an investigation and conciliation phase, and finally, if conciliation is unsuccessful in resolving the dispute, a public hearing.

Glassman suggested referring all of the cases not dealing with LGBT discrimination to the state commission if they required going through a public hearing. This would save the township money by not having to pay attorney fees for the hearing, and because the state would have jurisdiction in cases related to any other type of discrimination, Lower Merion could have a comprehensive commission but only have to pay to hear cases based on sexual orientation and gender.

Reed said that he and his newly formed subcommittee would aim to have a second draft of the ordinance for review by the Administrative and Human Relations Committee by the end of the month.

Public comment on the agenda, other than Glassman's, was limited to handful of brief positive remarks encouraging the township's efforts in creating the new law. One Radnor Township resident, Jim Schneller, a third-party candidate for U.S. House of Representatives for Pennsylvania's seventh district, said he was disappointed in the township's choice to pursue legislation, but as the last member of the public to comment Bill Myrtetus said, "Nobody from Lower Merion has come up opposed to this resolution."