Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Wednesday, December 2, 2009

Court Allows Gender Hostile Work Environment Claims To Proceed To Jury

In Hiltabidel v. Uniontown Newspapers, Inc., No.: 2:08-cv-409 (W.D. Pa. 2009), the Court allowed plaintiff's allegations of a hostile work environment based upon her gender to proceed to a jury. The Court held that genuine issues of material fact existed with respect to whether comments made regarding plaintiff's attractiveness made by her supervisor, along with what plaintiff categorized as inappropriate requests and placement in inappropriate situations by her supervisor were severe and pervasive enough to constitute a hostile work environment under Title VII.

Plaintiff was a female sales representative for the defendant and had the responsibilities of selling advertising on the defendant's internet websites. The following facts were undisputed: (1) in March of 2007, plaintiff accompanied her supervisor to a meeting with a male potential client at the bar of a restaurant in Uniontown and that during the meeting, the customer sat next to plaintiff, his leg made contact with her leg early in the meeting and his arm was draped around plaintiff's chair for the duration of the meeting; (2) after the March, 2007 meeting, plaintiff requested not to meet with potential customers in restaurants again; (3) in April, 2007, plaintiff's supervisor asked her to have dinner with an employee of a Philadelphia newspaper that was conducting an on-site visit with the defendant; (4) on more than one occasion, plaintiff's supervisor shared comments with her that he either received or overheard the opinion that plaintiff was an attractive woman; (5) on one occasion, plaintiff's supervisor asked her to accompany him on an overnight business trip, which she declined;(6) on April 23, 2007, plaintiff approached the manager of a different department of the defendant employer and expressed her opinion that conducting a meeting with a customer in a bar was inappropriate; and (7) plaintiff resigned her position in June, 2007.

The defendant employer did not dispute these incidents, but argued that the supervisor never directed sexual conduct or behavior towards plaintiff, that the bodily contact complained of at the March, 2007 meeting was incidental, and that the remainder of plaintiff's complaints were innocuous incidents that were insufficient to give rise to a claim of a hostile work environment.

Plaintiff also complained of defendant's requirement that plaintiff be accompanied on appointments with potential clients by a sales representative from a different department. Defendant argued that this was intended to assist plaintiff and relieve her of having to "cold-call" potential clients. Plaintiff argued that this requirement was made in response to her complaints and was intended to reduce of efficacy of her position.

Court Rejects Hostile Work Environment Claim Based On Racial Comments and A Text Message

On November 23, 2009, in the case of Griffin v. Harrisburg Property Services, Inc., No.: 1:CV-08-1655 (M.D. Pa. 2009), District Judge Sylvia H. Rambo dismissed plaintiff's claim of a hostile work environment that was brought after plaintiff, a male African-American security employee, was subjected to two racially charged comments by his supervisor, a caucasian male, and also received racially explicit text message from that same supervisor. Shortly after receiving the text message, plaintiff reported the incidents to a different supervisor, who conducted an investigation, granted plaintiff's request for a location transfer, placed a final warning in the commenting supervisor's employment file, and conducted an in-house diversity training session.

The Court held the the evidence of two racial comments and one racially explicit text message was sufficient to establish a claim for intentional harassment based on race that was severe or pervasive, and which had a detrimental effect on the plaintiff. But, despite this finding, the Court dismissed plaintiff's claim because: (1) there was no evidence that the supervisor had relied upon his employment authority or that the company had aided him in any way while making his derogatory comments; and (2) in conducting its investigation, placing a final warning in the supervisor's file, granting plaintiff's transfer request, and conducting an in-house diversity session, the employer had taken appropriate remedial actions that were reasonably calculated to remedy the harassment. The Court held that these facts were sufficient to insulate plaintiff's employer from liability of the supervisor's actions under Title VII.

GINA Arrives!

The "Genetic Information Nondiscrimination Act of 2008" (GINA) went into effect last week, on November 21, 2009. GINA covers all private, state and local government employers who employ fifteen (15) or more employees, and prohibits such employers from: (1) taking any adverse employment action against an employee or prospective employee because of genetic information; or (2) limiting, segregating, or classifying employees in any way because of genetic information, which would deprive or tend to deprive the employee of employment benefits or which would adversely affect the employee's work status. With some limited exceptions (such as for use in an employer-offered health or wellness program), GINA also prohibits covered employers from requesting, requiring or purchasing genetic information about their employees or the family members of employees.

"Genetic information" under GINA is defined relatively broadly, and refers to information about an employee's genetic tests, genetic tests of an employee's family members, or the manifestation of a disease or disorder in family members of an employee. Note also, that the term "family member" of an employee is defined under GINA as "any individual who is a first-degree, second-degree, third-degree or fourth-degree relative" of an employee, i.e., an employee's parent, grandparent, great-grandparent, and great-great-grandparent.

For violations of GINA by an employer, the statute provides for various damages and remedies such as compensatory damages for future monetary losses, emotional distress, pain, suffering, inconvenience, mental anguish, punitive damages, attorneys' fees and expert witness fees. GINA does not allow for the recovery of backpay or interest on backpay.

The provisions of GINA are enforced by the EEOC. For more information on GINA's requirements and prohibitions, visit the EEOC website at http://www.eeoc.gov/laws/types/genetic.cfm

Friday, November 6, 2009

Court Refuses To Dismiss Claim of Pregnancy Discrimination

In Armstrong v. Greenwood Gaming and Entertainment, Inc., No.: 09-1321 (E.D. Pa. 10/21/2009), Senior Judge Louis H. Pollak, denied Defendant, Greenwood Gaming and Entertainment, Inc.'s motion to dismiss Plaintiff's allegations of pregnancy discrimination.

Plaintiff, a thirty-seven year old female, sued her employer, alleging that while she was pregnant, a manager at her workplace told plaintiff that if she lost her baby due to heavy lifting, she could "spread her legs and pop out another one," and also told Plaintiff that if she became pregnant again, he would punch her in the stomach. Plaintiff also claimed that she was denied a pay-raise that was given to non-pregnant employees.

Plaintiff went on maternity leave from October 2007 to January, 2007, but was terminated from her employment on February 1, 2008, for an alleged violation of workplace rules. Plaintiff contended that the stated reasons for her termination were pretextual, as certain male employees had committed similar violations in the past, but had suffered no adverse consequences.

The District Court refused to dismiss Plaintiff's complaint, holding that the above allegations were sufficient to allow Plaintiff's case to proceed through discovery. The Court also refused to dismiss Plaintiff's claim for punitive damages, holding that on these facts a jury "might infer the requisite nefarious attitude from defendant's action in discharging plaintiff right after her maternity leave."

Tuesday, November 3, 2009


On June 29, 2009, the United States Supreme Court, in a 5-4 ruling, decided the much-anticipated discrimination case of Ricci v. DeStefano, 129 S.Ct. 2658 (2009) and held that Title VII prohibits an employer from engaging in intentional discriminatory practices for the purpose of avoiding or remedying an unintentional disparate impact, unless the employer has a “strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action,” being complained of. In other words, an employer whose decision or policy unintentionally causes a disparate impact under Title VII, may not engage in any “curative” discriminatory practices in order to obviate the impact unless the employer can produce strong evidence that it will be subject to a disparate impact claim if it does nothing. Even though the Court’s decision holds firm to the unambiguous statutory mandates of Title VII, and thus is analytically sound, the practical effect that this ruling may have on employers going forward may be less than logical and indeed, may be downright burdensome.

The dispute in Ricci centered on a promotional examination for firefighters that was administered by the City of New Haven, Connecticut. In 2003, New Haven found itself with seventeen vacant officer positions within the City’s fire department. To fill these vacancies, New Haven administered a comprehensive promotional examination, consisting of both a written and an oral test. Ultimately, the examinations were taken by 118 firefighters with requisite service credentials. Of these 118 applicants, sixty-eight candidates were white, twenty-seven were black, and twenty-three were Hispanic. Fifty-six examinees passed the tests – forty-one whites, nine blacks and six Hispanics. The City’s civil service rules required the City to fill each vacancy by choosing one candidate from the top three scorers on the list of passing examinees, which meant that the eight available lieutenant positions would be filled entirely by white applicants, and that seven white candidates and two Hispanic candidates would be eligible for promotion to the seven vacant captain positions.

After seeing the statistical disparity in the results of the promotional examinations, some officials of the City of New Haven, including the City’s attorney, began to express their concerns that the tests had discriminated against minority candidates and urged the City to reject the results, claiming that the test results reflected a “statistical demonstration of a disparate impact,” which would subject the City to a discrimination claim under Title VII, if not rejected. Many of the firefighters who took the exam, however, argued that the results were fair and should be allowed to stand. Ultimately, the examination results were not accepted.

The firefighters thereafter sued the City under Title VII, claiming that when the City rejected the test results in order to alleviate a perceived disparate impact on the minority candidates, the plaintiffs themselves had suffered an adverse employment decision due to their race - an action clearly in violation of Title VII. In response, the City argued that “they cannot be held liable under Title VII’s disparate-treatment provision for attempting to comply with Title VII’s disparate impact bar.” Ricci at 19.

Writing for the majority of the Court, Justice Kennedy recognized that “[t]he City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense,” and that notwithstanding “the City’s ultimate aim – however well intentioned or benevolent it might have seemed – the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.” Ricci, at 19-20. Having recognized that the City’s decision to reject the test results was, in and of itself, a patent violation of Title VII, the Court noted that “the question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.” Id.

To answer this question, the majority turned to the Court’s Fourteenth Amendment Equal Protection jurisprudence and adopted a “strong basis in evidence” standard to govern these types of employer decisions. Under this test, “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to a disparate-impact liability if it fails to take the race-conscious, discriminatory action.” Id. at 26. Importantly, this test is an objective one, and will not necessarily be resolved in favor of the employer, even when the employer maintained a subjective motivation or belief that it was taking action in order to avoid committing disparate-impact liability. Id. In short, the majority found that on the record before it, the City of New Haven was unable, as a matter of law, to establish “an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.”

In practice, the new “strong basis in evidence” defense that was enunciated by the Court’s majority places the burden on the employer to essentially prove, almost as if it were the plaintiff, that the policy or decision sought to be remedied or avoided actually resulted in an impermissible disparate impact in violation of Title VII. While the burden of proof on an employer seeking the protection of this defense was not precisely described by the majority in such terms, it was made quite clear that more than a mere showing of a disparate impact is required. Specifically, the majority opinion stated that “a prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity . . . and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII . . .” Id. at 28. And, the majority was unequivocal in noting that “fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals . . .” Id. at 33.

The consequences of an employer’s reliance on this defense should be obvious. In order to avoid liability for a racially motivated, albeit subjectively well-intentioned employment decision, undertaken to cure a different perceived discriminatory action, an employer is now forced to establish and produce sufficient evidence of its own liability for a disparate-impact violation under Title VII. For an employee, who is a member of the “disparate-impact” class, nothing could be more desirable than having the employer produce and argue evidence of its own Title VII disparate-impact transgression. Moreover, the employer who is actually successful in establishing a “strong basis in evidence” defense and avoiding a disparate treatment claim, has now almost assuredly left itself wide-open for liability on the disparate-impact claim. On the other hand, in those situations where the employer is unable to meet the evidentiary threshold of the “strong basis in evidence” defense, liability for the employer’s disparate-treatment decision is almost assured. And, consider what would happen if the employer finds itself litigating both a disparate-treatment and a disparate-impact suit at the same time – how does the employer go about mounting a credible defense to one without jettisoning its ability to prevail in the other?

Despite the legal and statutory foundation for the Court majority’s ruling, it appears that in practice, the Ricci test that is now applicable in such discrimination lawsuits under Title VII, may work more of a zero-sum game for employers than was perhaps intended or desired, with liability almost certainly resulting from one position or another. Therefore, an employer who attempts to remedy or alleviate a previous employment practice or decision it believes, in good-faith, may work a disparate-impact (even through such a practice or decision may have been made without any malice or discriminatory intent whatsoever), will find itself forced into a “damned-if-you-do, damned-if-you-don’t,” situation as a consequence of the framework set forth by the Ricci case. Therefore, both employers and their counsel must be cognizant of such a situation, including the consequences thereof. After all, in the landscape of discrimination claims following the Ricci decision, preparation may well be the only real defense an employer can muster.

3rd Circuit - Independent Contractors May Bring Discrimination Claims under 42 U.S.C. Section 1981

On September 11, 2009, the Third Circuit Court of Appeals held, for the first time in this jurisdiction, that an independent contractor may properly bring an action for discrimination against the entity with which he or she contracted, pursuant to 42 U.S.C. section 1981.

42 U.S.C. section 1981 provides that "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

Independent contractors have historically been unable to seek and enjoy the protections of employment discrimination laws such as Title VII and the Pennsylvania Human Relations Act, because the scope and application of these laws is strictly limited to those individuals who are "employees." With this decision, however, independent contractors within the jurisdiction of the Third Circuit are able to enjoy a modicum of protection and bring a cause of action on the basis of discrimination that occurs within the context of the independent contractor relationship.

3rd Circuit - Accrued "Comp" Time" Counts Towards FMLA Leave

On September 23, 2009, the Third Circuit Court of Appeals in Erdman v. Nationwide Ins. Co., held that "comp" time (or "compensatory" time) that is accrued by an employee for overtime hours worked, may be included towards the 1,250 minimum hours of service needed to be eligible for Family Medical Leave, where enough evidence exists to show that the employer had either actual or constructive knowledge that the employee was accruing "comp" time hours.

In this case, the plaintiff, Brenda Erdman, sued her former employer, Nationwide Insurance Company, alleging that she was terminated from her position in 2003 in retaliation for requesting FMLA leave in order to care for her daughter, who has Down Syndrome. Nationwide argued that Erdman was fired for unrelated behavioral problems, such as allegedly using profanity on a phone call that was being monitored for quality control.

Before the trial court, Nationwide moved to dismiss Erdman's FMLA claim, alleging that she had not accrued the requisite 1,250 hours of service over the previous 12 month period necessary to become eligible for FMLA leave in the first place. Erdman calculated that she had accrued 1,298.25 hours within the relevant time period, which included "comp" time hours that she accrued from extra work performed at home in 2002. Nationwide disputed the inclusion of Erdman's "comp" time hours, arguing that in 2002, it had no knowledge, either actual or constructive, that Erdman had been working extra hours and accruing "comp" time, and that in February, 2003, Erdman's supervisor specifically told Erdman that she could no longer use extra hours for "comp" time. Nationwide also pointed to a conversation between Erdman and her former supervisor, wherein Erdman was told to "put in the hours that you're supposed to put in and nothing more than that." The trial court agreed with Nationwide and excluded Erdman's "comp" time from the FMLA hours calculation.

On appeal, the Third Circuit disagreed, and vacated the dismissal of Erdman's FMLA claim. The Court of Appeals held that on the evidence presented, a reasonable jury could conclude that Nationwide did, in fact, possess actual or constructive knowledge that Erdman was accruing "comp" time in 2002. The Court held that the conversation relied upon by Nationwide in which Erdman was told to only "put in the hours that you're supposed to put in," was not supportive of Nationwide's position, as it made no specific reference to "comp" time accrual. The Court also pointed to an email that was sent by Erdman to her supervisor during the relevant period, in which Erdman sought to clarify whether she was still authorized to work extra hours for "comp" time, but to which she received no reply. On this evidence, the Court of Appeals concluded that Erdman's FMLA claim should should have been sent to a jury, to determine whether Nationwide intended to prohibit all out-of-the-office work, or whether Nationwide had only intended to preclude Erdman from earning overtime, while still allowing her to accrue "comp" time.

Monday, November 2, 2009

Welcome to PA Employment Law Blog!

Welcome all!

This is a blog that will discuss new developments in employment law in Pennsylvania. As a lawyer in the suburban Philadelphia area, my goal is to not only provide updates on recent case law and legislation in this area for those in the legal profession, but also to provide practical advice and information for both employers and employees alike. I will do my best to update this blog as frequently as possible, so visit often!

If anyone has any specific questions about anything posted on this blog, feel free to email me at mdavey@eckellsparks.com or call me at (610) 565-3700.

Also, make sure to visit our firm's website at www.eckellsparks.com for all of your legal needs in and around the Philadelphia area!


~Michael J. Davey, Esq.
Eckell, Sparks, Levy, Auerbach, Monte,
Sloane, Matthews & Auslander, P.C.
344 West Front Street
Media, PA 19063
(610) 565-3700