Category Archives: Employment DIscrimination

One Severe Incident is Enough to Prove Racial Harassment at the Workplace

Employees are protected from harassment at the workplace when the underlying reason behind the harassment is protected by the law. For instance, sexual harassment takes place when employees face intentional discrimination based on sex. Racial harassment takes place when an employee is subjected to harassment based on race. A recent Third Circuit Court of Appeals decision makes it clear that even one isolated incident can form the basis of a harassment claim.

In Castleberry v. STI Group; (3rd Cir. no. 16-3131 (July 14, 2017), two African- American males were fired by a staffing-placement agency which employed the employees at Chesapeake Energy an oil and natural company. The employees claimed that the termination was racially motivated, citing discriminatory remarks at the workplace and unfair work treatment. The Third Circuit reversed the trial court’s 

dismissal of the employees’ Complaint finding that the employees sufficiently alleged claims of harassment, disparate treatment discrimination, and retaliation.

In Castleberry, the employees alleged that when they arrived at work, 

on several occasions, someone had anonymously written “don’t be black on the right of way” on sign-in sheets, and when working on a fence-removal project, a supervisor told one of the employees and his coworkers that if they had “nigger-rigged” the fence, they would be fired. Following the last incident, the employees reported the offensive language to a superior and they were fired two weeks later without explanation, they were rehired shortly thereafter, but then terminated again for “lack of work.” The employees filed a lawsuit alleging harassment, discrimination, and retaliation in violation of 42 U.S.C. §1981 which provides, “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 the full and equal benefit of all laws . . . as is enjoyed by white citizens . . .” The employees alleged a hostile work environment on the basis of race which requires that an employee show that the employee suffered intentional discrimination because of race, the discrimination was severe or pervasive, the discrimination detrimentally affected the employee, the discrimination would detrimentally affect a reasonable person in like circumstances, and the existence of respondeat superior liability (i.e. a basis for the employer being responsible for the conduct- such as a manager making the comments).

In Castleberry, the Third Circuit made it clear that to prevail on a harassment or hostile work environment claim, an employee must establish that . . . the discrimination was severe or pervasive, a standard the Supreme Court has articulated as much on several occasions. Then the Court considered whether a supervisor’s single use of the “n- word” is adequately “severe” and if one isolated incident is sufficient to state a claim or harassment or a hostile work environment. The Third Circuit found that an isolated incident of discrimination if severe can suffice to state a claim for harassment. Applying this standard, in Castleberry the Court held that because the employees alleged that their supervisor used a racially charged slur in front of them and their non-African- American coworkers and within the same breath, and the use of this word was accompanied by threats of termination which ultimately occurred, the single incident was sufficient to show severe conduct that could create a hostile work environment.

The Court also noted that the employee could also satisfy the “pervasive” standard as the employees alleged that on several occasions the sign-in sheets bore racially discriminatory comments and the employees were required to do menial tasks while less experienced white colleagues were instructed to perform more complex work. Thus, the Court held that the employees pled a plausible claim of a hostile work environment under either theory- as the harassment was both “severe” or “pervasive.”

In Castleberry, the Court also held that the employees had a viable retaliation claim based on their claim that they were fired for reporting the racially discriminatory remark made by their supervisor. To establish a retaliation, claim an employee must establish that the employee engaged in protected activity by making a claim of discrimination based on a good faith reasonable belief; the employer took an adverse employment action against the employee; and there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. As the Third Circuit found that a single incident can amount to unlawful activity, the Third Circuit also reversed the trial court’s dismissal of the retaliation claim. The court also reversed the dismissal of the employees’ discrimination claim based on disparate treatment because the employees belong to a racial minority; there was evidence of an intent to discriminate based on race and the termination of employment is a protected activity under §1981.

Andrew Abramson is a Philadelphia area employment discrimination attorney. For more information about race discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130158.html.

Leave a comment

Filed under Employment DIscrimination, Employment Law, Harassment, Race Discrimination, Retaliation

Pennsylvania Employee Laid Off After 33 Years of Service Has Race Discrimination Claim

When an employer has a reduction in force (i.e. layoff), an employee may have an employment discrimination claim if the employee is able to establish the reason that the employee was chosen for a layoff and other similarly situated employees were not laid off is due to a protected criteria such as the employee’s age, race, sex, religion, national origin or a disability. In Johnson v. Verizon Services Corporation, E. D. Pa. no. 16-1023 (DuBois, J,) (April 18, 2017), the court denied the employer’s motion for summary judgment and held that an employee, the only African-American employee in his department, who was terminated during a reduction-in-force after a 33 year career at Verizon had sufficient evidence of race discrimination to proceed to a jury trial.

In Johnson, the employee worked on a code review team, responsible for identifying errors and vulnerabilities in computer applications and recoding. The employee had the highest job title ranking available in the IT Department; had received above satisfactory performance ratings, including many positive comments concerning his work performance. Of the 6 employees on the code review team, the Plaintiff, the only African-American was terminated, as part of a reduction-in-force (“RIF”) and the other 5 employees who were retained all had less work experience.

In defending the race discrimination claim, the employer contended that it terminated the Plaintiff during the RIF because he was the least valuable member of the coding team and had performance issues. According to the selecting manager, there was no specific standard used to determine who would be selected for the RIF because the manager “owned the department” so he knew what was required and he “put together a table of pros and cons” on all of the employees. However, the manager testified that he destroyed the list approximately 6 months after the termination and there were no records of any kind available regarding the manager’s selection determination.

Race discrimination cases are analyzed under the McDonnell Douglas burden shifting test. In order to established a prima facie case of race discrimination where there is a reduction in force, an employee must show that (1) the employee belongs to a protected class, (2) the employee was qualified for the position, (3) the employee was terminated, and (4) other employees outside of the protected class were retained. An employee’s qualifications for purposes of proving a prima facie case are determined by an objective standard. Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination. Then an employee must show that the employer’s articulated reason was a pretext for intentional discrimination by pointing to some evidence from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s decision to terminate employment.

In Johnson, there was no dispute that the Plaintiff was the only African-American in his group and the only employee who was terminated. Thus, the only element of the prima facie case at issue was whether he was qualified for his job. The court found that by having 33 years of employment experience at Verizon, 3 years on the coding team and only positive performance written performance appraisals, the Plaintiff was qualified for the job from which he was terminated. The employer’s proffered reason for termination was that the Plaintiff was ranked lowest in the coding group with respect to the coding skills necessary for the code review job and other employees possessed primary expertise, which the court held could be a legitimate, nondiscriminatory reason for his firing. Then the court analyzed the evidence of pretext and held that positive performance reviews, lack of a disciplinary record, a long work history with Verizon, a ranking of being the most proficient member of the team with commendations for a wealth of knowledge and experiences and no written evidence of negative performance issues created a genuine dispute of material fact regarding the proffered reason for termination. The court noted that its findings were particularly influenced by the fact that the only evidence of deficient work performance presented by the employer was “subjective evaluations” which are more susceptible of abuse and more likely to mask pretext. Thus, the court denied the employer’s motion for summary judgment permitting the case to proceed to a jury trial.

Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of race discrimination and all other forms of employment discrimination. For more information on Pennsylvania employment law see our website at http://www.job-discrimination.com.

Leave a comment

Filed under Employment DIscrimination, Philadelphia Employment Law Attorney, Race Discrimination

Employee Terminated After Sexual Relationship with a Company Owner on Employer Sponsored Trip Has Viable Sex Discrimination & Hostile Work Environment Claims

In order to motivate sales representatives, in addition to commissions, some employers offer other types of incentives, including paid vacations. When employers reward employees with vacations in which company ownership and management also participate, social interaction outside the workplace may create the potential for significant liability and damages. A recent Pennsylvania federal court decision that denied an employer’s motion for summary judgment shows that it is possible for sex discrimination and sexually hostile work environment claims to arise in such situations.

In Getter v. IA-Works, Inc., E. D. Pa. no. 16-953 (December 19, 2016, Beetlestone, J.), a female sale representative was rewarded with an employer sponsored sailing trip in the Mediterranean Sea. The trip included traveling in sail boats with overnight bedroom accommodations. The Plaintiff employee, a sales representative for a manufacturer of products for the chemical, pharmaceutical, and food industries, worked remotely from her home in Pennsylvania. Prior to the trip the employee consistently received positive work performance evaluations. Shortly after returning from the trip, the employee was terminated and she filed litigation in federal court in Philadelphia, Pennsylvania under Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act, alleging that the termination of her employment was discrimination based on her sex; and that she was subjected to a sexually hostile work environment.

Participants in the sailing included three owners of the employer, the President (father) and two sons, who are also owners of the employer; as well as the father’s romantic partner, the Managing Director who served as the Plaintiff employee’s supervisor. While some of the details were disputed, the Plaintiff employee and one of the sons engaged in a consensual sexual encounter during the trip and the President and Managing Director found about the sexual relationship. On the final day of the trip, the Plaintiff employee apologized to the President for “having sex on a business trip,” but denied making a broader apology about the relationship. The President said, “How can a woman like you, a professional businesswoman, let something like this happen. How can you spread your legs after the second day, after the third day or whenever it happened? I mean if this happened after three months or – what kind of sign is this?” The President then gave the employee an ultimatum, quit working for the company to pursue a relationship with his son or break things off with the son and continue in her sales position. The Plaintiff employee and the son did not see each other after the trip but stayed in touch by texting each other. Three weeks after the trip the Plaintiff employee was fired.

To establish a prima facie case of sex discrimination an employee must show that the employee was a member of a protected class; (2) was qualified for the job, (3) the employee suffered an adverse employment action; and (4) members of the opposite sex were treated more favorably, or that an adverse employment action occurred under circumstances that could give rise to an inference of intentional discrimination. The most straightforward method for demonstrating an inference of discrimination is to show that similarly situated employees who were not in a protected class were treated more favorably (i.e. a man was treated differently than a women). However, if it is not possible to use a specific comparator an employee may provide other evidence to establish a causal nexus between sex and the termination of employment. Once a prima facie case is established, the employer must offer a legitimate, non-discriminatory reason for the termination. Thereafter, the burden shifts back to the employee to offer some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Getter, the court held that the President’s statement that Plaintiff employee’s behavior was inappropriate for a “businesswoman” suggests that he viewed female sexual activity as more problematic from an employer’s perspective than similar behavior on the part of a male employee. In addition, the court held that the evidence suggested that the President harbored “traditional stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior.” Thus, the court held that a jury could reasonably conclude that the President’s reaction to the employee’s sexual relationship provides evidence that the termination of employment was based on sex.

The court then considered the employer’s proffered reason for the termination, which included reference to the “inappropriate” relationship with the son, continuing the relationship after vowing to end it, and failing to follow-up on sales duties after the trip. The court found that pretext existed as the proffered reason itself is vague and imprecise. Further, initially the Managing Director was enthusiastic and then perhaps neutral in her attitude toward the relationship and the Managing Director cancelled the only scheduled sales call after the trip. Pretext was also found because the Plaintiff had been advised that the relationship would not impact her employment status. Thus, the court found that the inconsistencies, contradictions, and weaknesses in the proffered reason for termination were sufficient to permit a factfinder to disbelieve the employer’s reason and make a reasonable inference that sex discrimination instead motivated the employer’s termination.

As to the hostile work environment claim, the Plaintiff employee contended that the son’s initial proposition of sex, the President’s comments to her on the final day of the trip and several other events, created a sexually hostile work environment. To prevail on a hostile work environment claim arising from sexual harassment, an employee must show that: 1) she suffered intentional discrimination because of her sex; 2) the discrimination was severe or pervasive; 3) the discrimination detrimentally affected the plaintiff; 4) the discrimination would detrimentally a reasonable person in the employee situation and respond superior (employer liability) exits. A hostile work environment claim can be supported by indirect evidence as the intent to discriminate based on sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit. When a hostile work environment claim is based on alleged harassment by a supervisor, an employer’s liability is established if the harassment culminates in a tangible employment action. (i.e. termination of employment). When the alleged harasser is not a supervisor, the employer is liable only if it was negligent in controlling working conditions that led to the hostile work environment.

In Getter, the court found that the President’s conversation with the Plaintiff on the final day of the trip and the son’s (a part owner of the company) initial sexual advances which the Plaintiff initially rejected before the sexual was eventually consensual, could lead to a jury reasonably concluding that there was discrimination because of sex. The court also found that viewing the overall scenario experienced by the Plaintiff employee on the a 12 day sailing trip less than six months into her employment with a family owned company, a jury could reasonably conclude that the employee was subjected to sexual harassment sufficiently severe enough to alter her conditions of employment as within the first days of that trip, Plaintiff was propositioned for sex by a part-owner of the company (who she had never previously met), and the trip concluded with her being berated for accepting that proposition by his father, which represents an intermingling of sex-based discrimination and employment conditions; and that taken in the context of 12 day company sponsored trip in which Plaintiff had little contact with the outside world, a jury could reasonably conclude that this environment, was sufficiently severe as to constitute a change in the conditions of Plaintiff’s employment. The court also found that the conduct would detrimentally affect a reasonable similarly situated employee for the same reason; and that there was evidence that the employee was severely impacted with great anxiety about the entire situation and how it might impact her future. Lastly, as the alleged harassment culminated in the termination of employment, the employer could be liable.

Andrew Abramson is a Pennsylvania employment law attorney who represents employees who are the victims of sexual harassment and sexually hostile work environments. Abramson Employment Law represents clients in federal and state court in Philadelphia, Montgomery County, Pennsylvania and surrounding areas. For more information on sexual harassment see http://www.job-discrimination.com/sexual-harassment.html.

Leave a comment

Filed under Employment DIscrimination, Sex / Gender Discrimination, Sexual Harassment

Husband Proceeds with Sex Based Hostile Work Environment Claim Against Employer Based on Wife’s Actions

Many employers have policies that restrict two members of the same family, such as a husband and wife, from working together in order to avoid nepotism, a conflict of interest and other issues that could allow a family related dispute to cause an issue at the workplace. Other employers permit two family members to work at the employer if they are in a different department, or they do not supervise each other. A recent Pennsylvania federal court decision in Reiser v. Concordia Lutheran Health, W. D. Pa. no. 16-959 (December 8, 2016, Bissoon, J.) demonstrates that employers who do not have these types of workplace restrictions may be exposed to liability under laws which protect retaliatory action against employees, such as sexual harassment.

In Reiser, the husband was an employee who worked as a Corporate Director of Rehabilitation at a senior and healthcare services provider with several locations. The employee’s wife, the daughter of the Chief Executive Officer, was employed by the same employer as a manager. When the marital relationship ended, bad feelings erupted, causing substantial problems at the workplace.

The wife confronted her husband in his office and asked him to renew their relationship before their divorce was final; when he refused, the wife stated that she would make his life “a living hell.” The wife then engaged in a series of harassing actions at work, including sending text messages using vulgar terms; telling other employees that the husband was an inadequate lover and a poor father; requiring the husband to use a computer program at work to track his whereabouts and the time that he spent using his mobile phone, while no other salaried, management level employee was required to do the same; falsely alleging that the husband was repeatedly staring at her and not working; using the performance evaluation process to accuse the husband of poor work performance, even though the work performance allegations conflicted with the performance data provided by the other facility managers; and reporting the husband to the police for a violating a protection from abuse order and not advising the police that the husband was an employee required to work at the designated location that day, with the intent of causing difficulty at the workplace as it would be nearly impossible for him to perform his duties and comply with the restrictions. The husband complained to human resources about the wife’s conduct but the employer took no action to address the situation and have the wife cease her actions.

In Reiser, the husband filed litigation against the employer claiming that the employer subjected him to a hostile work environment because of his sex. The employer filed a Motion to Dismiss, arguing that the employee’s hostile work environment claim fails because the actions at issue were not motivated by sex, but rather were the result of a family law dispute.

In order to establish a prima facie of a sexually hostile work environment based on gender, an employee must show that the employee (1) suffered intentional discrimination because of sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the employee; and (iv) the discrimination would negatively affect a reasonable person in the employer’s position. For the harassment to be actionable, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.

In Reiser, the court denied the Motion to Dismiss and found that the husband alleged sufficient facts to support a sexually hostile work environment claim against the employer by showing that the wife’s actions were sufficiently severe and pervasive to have altered the terms and conditions of his employment, as the wife used her position as a management level employee and daughter of the employer’s Chief Executive Officer to harass the husband because of his refusal to renew their intimate relationship. As such, the court found that the husband sufficiently alleged that he was negatively impacted by the alleged harassment in the form of anxiety and depression and that the actions taken against him would negatively affect a reasonable person in the employee’s position.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who have been subjected to sexual harassment and hostile work environments. Abramson Employment Law represents clients in Philadelphia, Montgomery County and surrounding areas. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

Leave a comment

Filed under Employment DIscrimination, Hostile Work Environment, Sex / Gender Discrimination, Sexual Harassment, Sexual Harassment

Employer May be Liable for Sexual Harassment by Coworkers Who are not Supervisors

While an employer is not automatically liable for sexual harassment at the workplace when a coworker engages in sexual harassment, where the employer has notice of the sexual harassment and fails to take action to stop the harassment, the employer can be found liable. Employers are also liable for retaliation when they take action against employees for reporting sexual harassment.

In Rosh v. The Gold Standard Café at Penn, Inc., E. D. Pa no. 16-1676 (December 19, 2016, Surrick, J.), the employee, a restaurant prep cook alleged that she was sexually assaulted on multiple occasions. A co-worker grabbed her in the crotch area, made attempts to touch the employee’s breasts, consistently stared at her breasts, and intentionally touched the employee; and another co-worker attempted to touch employee and also made multiple sexually inappropriate comments.The employee told the coworkers to stop however, the conduct continued. The employee reported the sexual harassment to the two co-owner/managers who advised they would speak to the coworkers but the sexual harassment continued. Thereafter, the employee sent an email to the managers detailing the sexual harassment and also followed up with a letter. Thereafter, an owner/manager stopped speaking to the employee, reduced her work hours and told the employee to try to stop the harassment on her own. Shortly thereafter, the employee resigned because the employer refused to address her reports of sexual harassment and instead retaliated against her. The employee filed causes of action for a sexually hostile work environment, constructive discharge of employment and retaliation for reporting the harassment and the employer filed a Motion to Dismiss the Complaint.

In order for an employee to establish a sexually hostile work environment claim, an employee must prove that: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the employer is subject to liability under the theory of respondeat superior. In considering whether the work environment was hostile, courts must consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

When the harasser and victim are of the opposite sex, there is a reasonable inference that the harasser is acting because of the victim’s sex. With regard to meeting the severe or pervasive standard, simple teasing, offhand comments and isolated incidents (unless extremely serious) will not typically amount to discriminatory changes in the terms and conditions of employment. If management-level employees have actual or constructive knowledge about the existence of a sexually hostile environment and fail to take prompt and adequate remedial action, then an employer will be held directly liable for an employee’s sexual harassment. Once an employer has knowledge of the sexual harassment, it must take prompt and adequate actions reasonably calculated to prevent further harassment.

In Rosh, the court found that the employee had sufficiently plead sexual harassment as the grabbing of a female body parts and sexually inappropriate comments demonstrate that the harassment was because she was female; and the conduct was severe, and does not constitute simple teasing, as any reasonable person would find the actions hostile and abusive. Further, the respondeat superior (employer liability) standard was met because the employee informed the co-owners of the ongoing sexual harassment on at least four separate occasions and other there than speaking with the coworkers, the employer did not take any additional steps to remedy the situation; and instead stopped speaking to the employee and told her to fix the situation on her own.

A constructive discharge occurs when an employee resigns because of unendurable working conditions. An employee must show that the employer’s actions were serious enough to change the employee’s compensation, terms, conditions or privileges of employment and make continuing employment with the employer so unpleasant or intolerable that a reasonable person would resign. An employee does not have to show that the employer specifically intended to force the employee to quit, only that the employer knowingly permitted the unpleasant or intolerable discrimination. In Rosh, the court found that the employee demonstrated that her work environment was sufficiently unpleasant and intolerable so that a reasonable person would resign as she was repeatedly harassed and grabbed, and that she was afraid while at work; and the employer did nothing to solve the problem.

Both Title VII (the federal law) and the Pennsylvania Human Relations Act (PHRA) prevent employers from retaliating against employees for reporting instances of sexual harassment. To state a retaliation claim, an employee must establish that: (1) the employee engaged in protected activity; (2) the employer took an adverse employment action against the employee; and (3) there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. An employee must prove causation either through (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. Temporal proximity exists if an employee alleges a retaliatory action that occurred within a short time after the employee’s last protected activity.

In Rosh, the court found that the employee reasonably believed that her employer was required to take steps to prevent the sexual harassment and the hostile work environment, the employee reported the conduct at issue and she also stated that she would report the sexual harassment to the Pennsylvania Human Relations Commission (PHRC) if the sexual harassment did not stop. The court held that the employee had a reasonable basis to believe that the employer was violating its duties under the law. Further, the court found that after reporting the ongoing sexual harassment, management stopped speaking to the employee and reduced the employee’s scheduled work hours; actions that would dissuade any reasonable worker from reporting a charge of sexual harassment. As the retaliatory events occurred within five weeks from the time that the employee wrote a letter to management stating that if the employer did not take action in response to the sexual harassment the employee would report the employer to the PHRC; and after she complained again about the ongoing sexual harassment, the court found the temporal proximity requirement was satisfied.

Abramson of Employment Law represents Pennsylvania employees subjected to sexual harassment and retaliation by their employers. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

Leave a comment

Filed under Employment DIscrimination, Hostile Work Environment, Retaliation, Sexual Harassment

Employee Eligible for Unemployment Benefits When Policy Violation Protects Patient Care

As a Pennsylvania unemployment compensation attorney who represents employees at unemployment compensation hearings where the employee is appealing a denial of benefits, I have observed that many employers do not understand that the fact that the employer may have a legitimate reason for terminating an employee, does not mean that the employee will be denied the right to collect unemployment compensation benefits. Employers frequently confuse the right to terminate an employee with the employee’s right to collect unemployment compensation benefits. Pennsylvania unemployment compensation law recognizes that while Pennsylvania generally follows the principle of employment at will, and that the employer has the right to terminate employee for any non-discriminatory reason, including a violation of the employer’s policy, that right does not preclude the employee from collecting unemployment compensation benefits unless the employee engages in willful misconduct at the workplace.

Pennsylvania unemployment law provides that an employee is ineligible for unemployment compensation benefits when the employee’s termination is due to willful misconduct connected with the employee’s work. Pennsylvania courts have defined “willful misconduct” as a willful disregard for the employer’s interests; a deliberate violation of the employer’s rules; disregard for standards of behavior than an employer can expect; or negligence that reflects an intentional disregard of the interest of the employer or an employee’s duties to an employer. The employer has the burden of proving willful misconduct. An employer alleging willful misconduct must show that the employee violated the employer’s rules or policies and the employee’s actions were intentional or deliberate. Once the employer meets this burden, the burden then shifts to the employee to show good cause for a rule or policy violation.

The Commonwealth Court’s recent decision in Washington Health Systems Greene v. Unemployment Compensation Board of Review (Cmwlth Ct. Pa. September 21, 2016) demonstrates that an employee may be entitled to benefits even when a policy violation occurs. The employee, an emergency department registered nurse, was involved in the treatment of a patient at the hospital when the patient’s companion was also present in the emergency room. The employee was outside the treatment room gathering information and recording it on a computer while the companion was pacing outside the treatment room, loudly proclaiming that he wanted another nurse to be removed from the treatment room. The employee testified that the companion loudly threatened to “knock his teeth in” and made another threat. The employee testified that he threatened to call hospital security and he had to speak loudly to the companion to speak over him. The employee was subsequently terminated for violating the employer’s policies which prohibit disrespectful or unprofessional behavior at the workplace, and for conduct detrimental to a patient’s care and use of profanity.

The Court concluded that the Unemployment Compensation Board was correct when it found that the Claimant employee was eligible for unemployment compensation benefits because of the patient’s emergency situation, the employee’s active participation in screening for care, and the employee’s proximity to the companion. Thus, under the circumstances it was not possible to conclude that the employee acted unreasonably by failing to immediately notify his supervisor of the threat, as the employer’s policy technically required. In addition, the record supported the fact that it was the companion, not the claimant, who acted unreasonably and disrupted the patient’s care and that the employee’s actions were reasonable under the circumstances.

There are many nuances in Pennsylvania unemployment compensation law. Many times, employees are successful when they retain an experienced Pennsylvania unemployment compensation benefits attorney to appeal a decision denying unemployment benefits. The attorney will prepare the employee for the Referee’s hearing and represent the employee at the unemployment compensation hearing. For more information about Pennsylvania unemployment compensation claims and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1491925.html

Leave a comment

Filed under Employment DIscrimination, Employment Law, Unemployment

Gay Male Proceeds with Constructive Discharge Claim Based on Sexually Hostile Work Environment

Title VII, the federal discrimination law that protects employment discrimination in Pennsylvania based on race, national origin, religion and sex does not explicitly provide protection on the basis of sexual orientation. Nevertheless, federal courts have found that the law can be interpreted to protect gay employees under certain circumstances. In EEOC v. Scott Medical Center (W. D Pa. November 4, 2016) (Bisson, J.), the court held that Title VII protects a Pennsylvania employee who is subject to discrimination on the basis of sexual orientation, as the law protects “discrimination because sex.”

In Scott Medical Center, a gay male Pennsylvania employee worked in a telemarketing position. The employee alleged that he was subject to discriminatory behavior by the employer’s telemarking manager and that he was constructively discharged by the employer, due to an allegedly sexually hostile work environment perpetrated by the employer’s telemarking manager. The employee alleged that the employer manager’s discriminatory behavior subjected him to a continuing course of unwelcome and offensive harassment because of his sex and that the harassment was of sufficient severity and/or pervasiveness to create a hostile work environment because of the employee’s sex. In effect, the male employee was targeted because he did not conform to what the manager believed was acceptable or expected behavior for a male because of his association with members of the same sex, rather than the opposite sex, and the harassment created a work environment that was both subjectively and objectively hostile and intolerable because of sex.

The workplace behavior at issue included routine unwelcome and offensive comments by the manager, including regularly calling the employee fag, faggot and queer; and making statements such as “f-ing” queer can’t do your job. These harassing comments were being made at least three to four times a week. Additionally, upon learning that the employee was gay and had a male partner, the employee’s manager made highly offensive statements to the employee about the employee’s relationship such as saying, I always wondered how you fags have sex, I don’t understand how you f-ing fags have sex and who’s the butch and who is the bitch? The male employee complained about the manager’s conduct directly to the President/Chief Executive Officer of the employer, who shrugged it off and took no action at all to stop the harassment, which continued. The employer’s failure to engage in prompt and effective action in response to the ongoing harassment resulted in the male employee’s constructive discharge of employment when he quit.

Ironically, the situation involving the gay male employee first came to the EEOC’s attention as part of an investigation of charges of discrimination brought by five of the same manager’s former female co-workers, who alleged they had been subjected to discrimination because of sex based on sexual harassment and unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions.

In Scott Medical Center, the court noted that the Supreme Court has consistently applied a broad interpretation of the “because of sex” language in Title VII and in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998), the Supreme Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The court noted that “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality” and the court endorsed the EEOC’s statement that discriminating against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.” The court also noted that the Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation and noted that “someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Thus, the Court concluded that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex.”

Andrew Abramson and Abramson Employment Law represent Pennsylvania employees who are subject to discrimination and sexual harassment at the workplace. For more information see our website at http://www.job-discrimination.com/

Leave a comment

Filed under Employment DIscrimination, Employment Law, Sex / Gender Discrimination, Sexual Harassment, Sexual Orientation Discrimination