HARRISBURG – A recent 4-3 decision from the Supreme Court of Pennsylvania over the application of the Fair Practices Ordinance (FPO) to the Southeastern Pennsylvania Transportation Authority said the agency was not subject to the auspices of that anti-discrimination legislation in Philadelphia.

On April 26, Justice Sallie Updyke Mundy authored the majority opinion in SEPTA v. City of Philadelphia and Philadelphia Commission on Human Relations, which upheld an earlier decision made in the Commonwealth Court of Pennsylvania.

“As recognized by the Commonwealth Court majority…the legislature intended to shield SEPTA from entities initiating suits against it. The general authority of the City to legislate in this area, simply does not address the issue of its jurisdiction over SEPTA. In contrast, the sovereign immunity provisions do create an express limitation on any entity in bringing suit against SEPTA,” Mundy said, in part.

Supreme Court of Pennsylvania Justices Thomas G. Saylor and Max Baer joined Mundy’s opinion, while Saylor and fellow Justice David Wecht also filed concurring opinions.

The litigation history leading to the Supreme Court of Pennsylvania’s recent ruling was an arduous one.

In 2007, Charlene Arcila, a transgender woman, accused SEPTA of violating the FPO through their then-policy of indicating a passenger’s gender on their transportation passes.

Overseen by the Philadelphia Commission on Human Relations, the Fair Practices Ordinance seeks to protect sexual orientation and gender identification in public, employment and other matters, among other forms of discrimination, and the PCHR investigated Arcila’s claims and others made against SEPTA.

In response to a July 2009 lawsuit filed in the Philadelphia County Court of Common Pleas, SEPTA cited the prospect of sovereign immunity and said the PCHR had no jurisdiction over them as a state agency. In 2010, that court could told SEPTA it did not have sovereign immunity from FPO-related allegations.

Following contested decisions on both sides of the issue through a number of different courts and several appeals, the matter reached the Supreme Court of Pennsylvania multiple times. During this protracted legal battle over jurisdiction, SEPTA took away the gender identification symbols from its transportation passes in June 2013 and Arcila passed away in April 2015.

Throughout the history of this litigation, SEPTA has stated repeatedly that it did not engage in or permit discrimination and the matter boiled down to a question of jurisdiction, nothing more. The Pennsylvania Human Relations Act (PHRA) did not cover protections connected to sexual orientation and gender identity-related discrimination, an area which is covered by the FPO.

Crucial to Mundy’s interpretation and final opinion on the matter was a two-part test used to determine priority and purpose of legislation, originally devised in the Supreme Court of Pennsylvania’s 1984 decision in Commonwealth of Pennsylvania v. Ogontz Area Neighbors Association.

“We recognize that the legislature specifically waived sovereign immunity for Commonwealth agencies for purposes of enforcement of the PHRA. It does not follow that the waiver of immunity piggybacks to the FPO merely because local municipalities are permitted to exercise concurrent enactment and enforcement authority with the State Commission with respect to the subject matter at issue. Rather…[it] is an explicit expression of the legislature‘s intent to grant the State Commission exclusive jurisdiction over Commonwealth agencies in anti-discrimination matters,” Mundy said.

In contrast, Justice Christine Donohue filed a separate opinion dissenting from the majority, which Justices Debra McCloskey Todd and Kevin Dougherty joined.

“Properly understood, sovereign immunity poses no obstacle to subjecting SEPTA to the jurisdiction of the Philadelphia Commission in all cases not seeking monetary damages or mandatory injunctive relief. Accordingly, I respectfully dissent,” Donohue said.

Donohue continued, “As a Commonwealth agency, however, SEPTA has no sovereign immunity with respect to compliance with the PHRA. SEPTA is thus within the jurisdiction of the Pennsylvania Human Relations Commission (PHRC) and subject to the PHRA’s anti-discrimination provisions, which forbid various forms of discrimination, including discrimination based upon race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability. In contrast, the FPO provides additional antidiscrimination protections, including, inter alia, discrimination based upon gender identity, sexual orientation, ethnicity or marital status.”

Donohue said Pennsylvania’s “legislative intent reflects that SEPTA’s core mission is to provide public transportation without engaging in discriminatory conduct” and mandating SEPTA to follow the provisions of the FPO is “entirely consistent with its core mission.”

“SEPTA has offered no basis on which to conclude that while it can fulfill its core public transportation mission in compliance with the PHRA (and incurring associated litigation costs), it would be unable to do so if required to comply with the incremental additional anti-discrimination provisions of the FPO. On the other hand, serious consequences result from holding that SEPTA is exempt from the FPO, as the interests of entire classes of individuals otherwise protected by the FPO will have no protection from various forms of discrimination by Philadelphia’s largest transportation provider,” Donohue stated.

Donohue emphasized the objective of the FPO is “not to protect some, but rather all, Philadelphians from the types of discrimination identified in the ordinance” and “exempting SEPTA from the jurisdiction of the Philadelphia Commission and compliance with the FPO will interfere with the accomplishment of this purpose.”

Supreme Court of Pennsylvania case 10 EAP 2016

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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