Experts: Philly’s Gayborhood bar training order probably won’t hold up in court

Eleven bars must undergo implicit bias training; violations were filed against only two.

Crosswalks in the Gayborhood

Crosswalks in the Gayborhood

Bobby Chen/Billy Penn
mark

Mayor Jim Kenney and the Philadelphia Commission on Human Relations made their move on multiple reports of discrimination in the Gayborhood earlier this week. At a press conference, they released findings of a three-month investigation and announced the requirement for staff and owners of 11 Gayborhood bars and two nonprofits to undergo implicit bias and Fair Practices Ordinance training.  

But can they actually require anything of these organizations? The answer is a likely no, with the PCHR’s mandate going against many businesses that had not been ruled in violation of discrimination codes and in a way not outlined in the City Charter.  

To make it mandatory would be completely unique, particularly for somebody that hadn’t engaged in a violation,” said Mark Zecca, a former city attorney. “I don’t see any ability for the city to mandate people under the Fair Practices Ordinance to undergo training if they had not engaged in a violation.”

First, more details on the punishment: The 11 bars are ICandy, Woody’s, Boxer’s, Stir Lounge, Voyeur, UBar, Tabu, Franky Bradley’s, Knock, Tavern on Camac and Bike Stop. The two Gayborhood nonprofits are Philadelphia FIGHT and the Mazzoni Center.

After video surfaced of ICandy owner Darryl DePiano saying “nigger,” coupled with reports of black patrons being denied entry at Woody’s and ICandy, the PCHR held an educational hearing in late October that was attended by more than 300 people. The 11 bars and two nonprofits were brought up at the hearing, according to the PCHR. After the hearing, the PCHR compiled a report that named three of the bars (ICandy, Woody’s and Tavern on Camac). It released the report Monday, detailing a lack of inclusion in the Gayborhood for people of color, women and transgender people and “ad hoc policies”that supported discrimination.  

Four recommendations were made, including that bar owners and staff and nonprofit employees and board members “must receive training on the City of Philadelphia’s Fair Practices Ordinance and implicit bias” or risk compensatory damages. Employees can be trained through the city for free.

“The commission is mandating training, and they did that after they considered everything they heard,” said Rue Landau, executive director of the Philadelphia Commission on Human Relations. “They reached a finding that they believe is best designed to ensure compliance with the Fair Practices Ordinance. Mandating training is reasonable. It’s valuable to nonprofits and businesses.”

The educational hearing and report are outlined in the PCHR’s regulations. The requirements are where it gets murky. According to the Fair Practices Ordinance (FPO), the discrimination code enforced by the PCHR, the PCHR can levy punishments against establishments found to have violated the FPO. But that’s supposed to happen after a formal complaint of discrimination is filed against a business. The business then gets a chance to respond, and a hearing can be held. After the hearing, the PCHR can issue a written decision on the charges and mandate a remedy.     

Mayor’s Office spokesperson Ajeenah Amir said formal complaints were filed against one nonprofit and two bars. The formal complaints were not filed against the two bars until after the educational hearing and as of this week, according to Amir, those cases were to be served. Landau said no agreements were made with the businesses or nonprofits ahead of time to agree on the mandate.

Zecca said educational hearings like those held for the Gayborhood can lead to recommendations, not enforceable requirements.  

“It seems that the HRC skipped a few steps here out of overeagerness,” he said. “But it would uphold its credibility more by following proper procedure. You can still be very aggressive and follow proper procedure.”

One famous past example of a PCHR investigation came in 2009 after a formal discrimination complaint was filed against Geno’s over its “Speak English” sign. The PCHR ended up ruling the sign was not an FPO violation, but the case attracted heavy media interest.     

Usually you go against one bad violator like they did with Geno’s,” Zecca said. “Then it sets an example and warning for everyone else.”

Owners of several Gayborhood bars could not be reached for comment. Former Mayor Wilson Goode III, a board member of Philadelphia FIGHT, told the Inquirer’s Julia Terruso he was skeptical of the PCHR’s vetting process.

“Philadelphia FIGHT is probably one of the most diverse organizations in the city,” he said.

Landau compared the hearing and report on the Gayborhood to hearings held for South Philadelphia High School in 2010 in which it made dozens of recommendations for the school.

The PCHR, Landau said, is recommending but not mandating other nearby bars undergo the implicit bias and FPO training. The group also plans to videotape training so it can be viewed by any establishment in the city. But for the 11 bars and two nonprofits, Landau and the Mayor’s Office have stressed the training is mandatory.

The commissioners found that this was the best remedy for the situation,” Landau said. “What the commission wants is for more businesses to be in full compliance with the FPO….We want to make sure that every business and place of employment in the city is welcoming to all people and doesn’t discriminate against anyone.”