Category Archives: Sex / Gender Discrimination

Extreme Sexual Harassment of Philadelphia Police Detective Proceeds to Trial

Sexual harassment at the workplace in Pennsylvania takes many forms and in some circumstances the conduct at issue can be shocking. When an employee reports sexual harassment, the employer fails to take conduct a proper investigation and fails to take remedial action to stop egregious sexual harassment, employees may be able to recover substantial damages for emotional distress. In Vandergrift v. City of Philadelphia E. D. Pa. no. 16-cv-2999 (January 11, 2017), the employee, a female Philadelphia police detective, filed a lawsuit for gender discrimination, a sexually hostile work environment, and retaliation under Pennsylvania, federal and Philadelphia law.

To establish a sexually hostile work environment in Pennsylvania an employee must show: (1) she suffered intentional discrimination because of her sex; (2) the employee suffered severe or pervasive discrimination; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable employee in similar circumstances; and (5) the existence of respondent superior liability (employer liability). To determine whether an environment is severe or pervasive, courts 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.  Pervasive use of derogatory and insulting terms relating to women serve as evidence of a hostile environment. If supervisors create the hostile environment, an employer is strictly liable unless there is no tangible employment action taken against the employee and the employer exercised reasonable care to prevent and correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

In Vandergrift, the court’s opinion outlines graphic sexual misconduct and harassment at the workplace. The employee, a career Philadelphia police officer, became a detective after 7 years of service. She worked in an environment allegedly riddled with sexual harassment that included not only sex-based comments but also alleged sexual assault by a Chief Inspector. After complaining about the harassment, she was transferred to another squad and thereafter she was charged with misconduct.

The female detective testified that in 2007, the Chief Inspector called her on the phone on at least three occasions and made sexual comments including he would love to bend her over and his most favorite part of a woman’s body and the part of the body which turned him on most was the part between her hips to her thighs. There was evidence of egregious physical misconduct as the Chief Inspector called the detective into his office and said, he wanted to know how wet she was, unzipped her pants, stuck his hand down her pants and underwear, and inserted his finger into her and then engaged in other remarks. Other evidence included the employee’s testimony that not a week went by without demeaning, inappropriate, barbaric sex-based comments and gawking stares on a constant basis. When the employee complained about how the stares made her uncomfortable, she was advised she should take the stares as a compliment. Rumors were also spread around the workplace that she engaged in sexual relationships with coworkers; she was subject to constant comments about how good she looked, and she was exposed to numerous comments about officers’ penises.  In addition, a second female officer alleged that in one incident the same Chief Inspector started kissing her hard, touched her breasts, and put his hands on the outside of her pants toward her genitals and digitally penetrated her. An internal complaint was filed about that incident, the City impounded the Chief Inspector’s city-issued vehicle, conducted a forensic examination, and found seminal stains but the investigation resulted in a finding of “not sustained” and the Chief Inspector never received any discipline. After making a formal complaint the Plaintiff employee was charged with misconduct for sending a Facebook message to four male colleagues in her squad which included a picture of a baby whose facial expression reminded her of another Detective and included quotes with inappropriate language.

The Plaintiff offered expert testimony that the City’s sexual harassment complaint procedures and investigative practices failed to satisfy a number of workplace investigation standards by improperly applying a criminal law standard to some of the complaints; failing to investigate all the allegations and numerous other deficiencies.

In Vandergrift, the court addressed an issue that frequently arises in sexual harassment cases, the admissibility of incidents that go far back in time, given the time filing restrictions under applicable law (Pennsylvania law: employee must file a discrimination complaint within 180 days of the alleged act of discrimination; federal law: 300 days (EEOC Charge), two years (§1983 claim). In seeking to dismiss the employee’s claims, the City of Philadelphia argued that many of the facts forming the basis of the sexually hostile work environment claims occurred years prior to the charge and should be excluded because they were isolated or sporadic and not sufficiently linked to constitute one unlawful employment practice.

The continuing violations doctrine is an exception that extends the admissible incidents beyond the time filing requirements and provides that a sexually hostile work environment claim may be composed of a series of separate acts that collectively constitute one unlawful employment practice so long as (1) all acts which constitute the claim are part of the same unlawful employment practice; and (2) at least one act falls within the applicable limitations period. In Vandergrift, the Court concluded that the employee would be able to admit evidence that went back many years as there was sufficient evidence of a persistent, ongoing pattern of harassment which included the 2007 sexual assault and evidence that not a week went by without demeaning, inappropriate, barbaric sex-based comments, and gawking stares on a constant basis. The court also found a genuine dispute of material fact as to whether the City properly responded to the harassment allegations and whether it exercised reasonable care to correct the alleged harassment.

Retaliation claims concern conduct to which an employee is subjected after reporting sexual harassment. To state a prima facie case of retaliation an employee must establish: (1) she engaged in protected activity; (2) the employer engaged in conduct constituting an adverse action either contemporaneous with or after the protected activity; and (3) a causal connection between the protected activity and the adverse action. Then the burden of production of evidence shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action. Thereafter, the employee must prove that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.

In Vandergrift, the employee referenced four possible materially adverse actions: 1) supervisors labeled her as untrustworthy by telling her coworkers she filed an EEO complaint; 2) male colleagues spread rumors about her having a sexual relationship with a lieutenant; 3) the City reassigned her to another division where work is extremely hectic and busy; and 4) the City charged her with misconduct following the investigation. The court found that each of these could be adverse actions.

A third cause of action at issue in Vandergrift was a §1983 claim. A municipality is liable under §1983 when an alleged constitutional transgression implements or executes a policy, regulation, or decision officially adopted by the governing body or informally adopted by custom. The court found that the evidence established that there was sufficient evidence that the City of Philadelphia had a well-settled custom of sexual harassment within the Philadelphia Police Department as the employee’s coworkers and supervisors directed sex-based conduct toward her and other female employees throughout her employment and sexual allegations against high level managers were “swept under the rug” which equated to an unconstitutional custom of treating female employees in the Police Department less favorably than male employees. Thus, the court denied the Motion for Summary Judgment permitting all of the employee’s claims to proceed to a jury trial.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who are the victims of sexual harassment and sexually hostile work environments in Philadelphia and all its surrounding suburbs. For more information on sexual harassment see http://www.job-discrimination.com/sexual-harassment

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Pennsylvania Employee with 31-year Tenure Terminated by New Supervisor Has Viable Age, Sex & Retaliation Claims

When a long-term employee with a good performance record is terminated after a new supervisor makes ageist and sexist comments about the employee and the employee complains about the comments is then terminated, an employee has viable causes of action for age discrimination, sex discrimination and retaliation.

In Konsavage v. Mondelez Global LLC (M.D.Pa. no. 15-cv-1115) (February 3, 2017) (Conaboy, J.), the Plaintiff employee was employed for 31 years and consistently received positive performance appraisals until she began reporting to a new supervisor, the Director of Customer Service Operations. Shortly thereafter, management made ageist comments such as referring to the employee’s work area and older employees as “dead wood”; and comments like you should step aside and let the younger people shine, you’ve pretty much done everything you can do here; you have no potential at your age; you lack learning ability; and you lack agility. Evidence also included derogatory remarks about female employees and regular staff meetings that were described as “a frat house,” with the passing around pictures of women, and exist remarks and sexist stories. These actions caused the employee to complain to management and human resources.

In Konsavage, the employee was the Manager of Critical Inventory, a salary grade 12 position; shortly after her complaint, she was advised that her job was being downgraded from a salary level 12 manager to a salary level 10 team lead and her annual compensation was being reduced by over $9,000 per year. The employer advised her that the reduction was due to a company salary review, however, there was no evidence that any other employee suffered any economic loss in relation to such compensation reviews. After the salary downgrade the employee’s supervisor received a letter reflecting concerns about the employee’s performance as a manager from a subordinate, claiming that the employer requested that her team give her good rating review on an employee survey and criticizing her for micromanaging, being inflexible and being out of touch with the company’s values. The employer then conducted an investigation and terminated the employee.

The court denied the employer’s motion for summary judgment and ordered that the case should proceed to trial as a reasonable factfinder could conclude that employer’s termination of the employee’s employment was due to her age or sex, and that the demotion and termination could be found to be retaliation for engaging in protected activity (reporting discrimination at the workplace).

The federal age discrimination law (ADEA) and the Pennsylvania age discrimination law (PHRA) prohibit employers from taking adverse action against an employee who is at least 40 years old because of an employee’s age. In stances where there is no direct evidence of discrimination, a prima facie of age discrimination is established by showing that the employee was forty years of age or older; the employer took an adverse employment action against the employee (i.e. termination of employment or demotion); the employee was qualified for the job; and the employee was replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Direct evidence of discrimination alleviates the need to establish a prima facie case. Once an employer satisfies the burden of offering evidence that supports a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the employee to offer evidence from which a factfinder could reasonably either (1) disbelieve the employer’s reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. To meet this burden the employee must demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reason that a reasonable factfinder could rationally find the reason to be unworthy of belief.

In Konsavage, the court concluded that the employee raised questions and came forward with evidence which would allow a reasonable factfinder to conclude that the employer’s proffered reasons for demotion and discharge were pretextual, including the employee’s 31 year tenure with numerous promotions and positive reviews prior to a change in her supervisor; numerous disparaging remarks from the employee’s supervisor about her age, his disdain for working with older women, and derogatory statements about females in general. The court concluded that such comments made by a decision maker would be indications that age and/or gender played a role in the decision to demote the employee and/or terminate her employment.

The court also found sufficient evidence of retaliation. An employee asserting a retaliation claim establishes a prima facie case by showing (1) that the employee engaged in protected employee activity; (2) the employee suffered from an adverse action after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. To demonstrate a link between protected activity and an employer’s adverse action, an employee may rely on the temporal proximity (i.e. the amount of time between the protected activity and the adverse action) if it is unusually suggestive. In the absence of a such a close temporal proximity, courts consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.

In Konsavage, the court found that the employer’s argument that the employee’s retaliation claim fails for lack of temporal proximity was unavailing for several reasons including the close timing between the employee’s complaint and the downgrade of her job resulting in a reduced salary (as little as one month) and certain inconsistencies in the reasons for termination.

Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of age discrimination, sex discrimination and retaliation. For more information see our website at http://www.job-discrimination.com.

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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.

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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.

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Female Pennsylvania Manufacturing Employee’s Sexual Harassment, Retaliation & Sex Discrimination Claims Proceed to Trial

Female employees who work in male dominated manufacturing production environments may confront unique issues at the workplace. In Vollmar v. SPS Technologies, LLC E. D. Pa. no. 15-cv-2087 (December 2, 2016, Pratter J.), the court denied a motion for summary judgment, ruling that a female Pennsylvania employee can proceed to trial with her sex discrimination, retaliation, and sexual harassment claims against her current employer. The employee, who has worked for her employer for 27 years in a manufacturing plant where men comprise over 90% of the workforce, alleged that she was repeatedly exposed to sexual harassment at the workplace where there were ever-present sexual overtones of materials.

In Vollmar, the employee’s evidence included sexually oriented material at the workplace including a sign on a refrigerator that included phrases such as “My sexual preference is . . . often” and “I am not a bitch. I’ve just been in a very, very bad mood . . . for the past 30 years”; photographs of women, one with the word “PIG” written across it; a small box containing four small plastic or candy breasts, where the lid read “Bet you can’t eat just one”; and a Penthouse pornographic magazine. The employee also alleged that coworkers and managers regularly directed sexist comments toward her, including calling her a “bitch” several times a week; she had been told that “It’s just like a woman to do that”; she was regularly told that she did not know what she was talking about because she was a woman; and evidence that a coworker had a habit of staring at her during work hours.

Ironically, the female employee was being investigating by Human Resources for a code of conduct violation regarding a relationship with a male coworker. At that time, she complained about the untoward comments made to her and disparate treatment. The employee testified that
that Human Resources representatives acknowledged that bringing the toy breasts or a pornographic magazine into the workplace would violate SPS’s Sexual Harassment policies. Following the investigation, the female employee received a written warning for a violation of the Code and returned to work after a 10-day suspension and the male coworker was terminated.

To establish what the law terms a prima facie case of a sexually hostile work environment, an employee must show: (1) the employee suffered intentional discrimination because of sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person in that position; and (5) the existence of respondent superior (employer) liability.

To determine whether an environment is sufficiently hostile or abusive, courts look to a number of factors, including the frequency of the discriminatory conduct; its severity; whether the conduct at issue is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interferes with an employee’s work performance. Workplace conduct may be severe, pervasive, or both, as a single incident of severe harassment in the workplace may contaminate the work place to such a high degree that it will be considered hostile. Where the harassment is not severe, a collection of incidents of harassment must occur either in concert or with regularity. The use of derogatory and insulting terms relating to women at the and the posting of pornographic pictures in common areas and in personal work spaces may serve as evidence of a hostile environment.

In Vollmar, the court found that considering the frequency and variety of the types of gender-based and sexual language, material, and conduct a jury could determine that the harassment was severe or pervasive.

It is important to keep in mind that even where there is sexual harassment, in some instances the employer is not automatically liable for the conduct. Employer liability may depend on whether the sexual harasser is the employee’s coworker or a manager / supervisor. Unlike nonsupervisory harassment, employers can be liable for harassment by supervisors with authority even if the employer did not have notice of the harassment. In circumstances where the sexual harassment is not by a manager or supervisor, an employee must show that management level employees had actual or constructive knowledge of the sexual harassment and the employer failed to take prompt and appropriate remedial action such as failing to train, discipline or terminate employment upon receiving notice of the sexual harassment.

The foundation of a retaliation claim is that the employee reported conduct that is protected by the law and the employer took action against the employee for reporting the conduct. In evaluating retaliation claims in Pennsylvania, federal courts apply the McDonnell Douglas three-part burden-shifting framework which requires that an employee must first establish a prima facie case, showing that the employee engaged in protected activity; 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. Once the employee meets this burden, the employer must offer a legitimate, non-discriminatory reason for the adverse employment action. Then the employee must show pretext by pointing to some evidence from which a jury could reasonably either disbelieve the employer’s articulated legitimate reason; or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

To make out a prima facie case of retaliation, a plaintiff must also show evidence that establishes a causal link between the protected activity and the adverse action. In Vollmar the employee argued that the record established a causal link between the adverse action and her complaint as the employee complained about certain conduct, as well as other sexual harassment, as late as seven days before she was suspended. The court held that the written warning constitutes an adverse action and that a reasonable jury could find that such action constitutes retaliation.

Andrew Abramson of Employment Law represent Pennsylvania employees who have been 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.

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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/

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

Terminated Employee Who Brings Shotgun to Work May Have Age and Sex Discrimination Claims

How can a terminated employee prove employment discrimination based on protected criteria such as age or sex when no one ever told the employee that the reason for termination was the employee’s age or sex? The answer is that federal and Pennsylvania law permits a Plaintiff employee to offer indirect evidence of discrimination. A recent Commonwealth Court of Pennsylvania case demonstrates that even when a gun is brought to work, if a similarly situated employee outside of a protected discrimination class is treated differently, courts may allow a discrimination claim to proceed.

In Leibensperger v. Carpenter Technologies, Inc. (Pa. Commwlth. Court September 22, 2016), the Commonwealth Court of Pennsylvania reversed the trial court and found that a terminated male employee may be able to show age and sex discrimination when the employer relied upon a policy which was not applied uniformly to a younger employee or a female employee. In Leibensperger, the proffered reason for termination of the male employee was that the employee violated the employer’s firearm policy that provides that bringing a firearm or other dangerous weapon onto the employer’s premises is considered an intolerable offense for which an employee will be immediately suspended with intent to discharge.

In Leibensperger, the employee brought an inoperable antique gun to the employer’s parking lot after his female co-worker said that she knew someone who could refurbish the shotgun and the co-worker agreed to transport the shotgun to the refurbisher’s place of business. While exchanging the shotgun in the parking lot, two other employees observed the transfer of the shotgun and reported the situation to the employer. After an investigation, the 53-year male employee was terminated but the female coworker was only suspended and then given a written warning. The terminated male employee filed age and sex discrimination claims regarding the termination and identified two other employees who were not terminated and received less harsh punishments for violating the employer’s dangerous weapons policy by bringing hunting bows onto the employer’s property.

Pennsylvania courts follow the analytical model established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973) in determining whether summary judgment is appropriate for employment discrimination cases, involving indirect discrimination, where the Plaintiff employee must establish that: (i) the employee is a member of a protected class; (ii) the employee was qualified for the position; (iii) the employee suffered an adverse employment action; and (iv) the employee was discharged under circumstances that gave rise to an inference of discrimination. An employee can establish circumstances giving rise to an inference of discrimination by demonstrating that the employee was discharged and replaced by someone outside of his protected class and that similarly situated employees were not treated equally. Whether a comparator is similarly situated is generally a question of fact for a factfinder.

Once the employee establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory motive for its action. If the employer does so, the employee is then given the opportunity to demonstrate that the proffered reason for termination was pretextual. There are two ways by which an employee can demonstrate that the employer’s legitimate, nondiscriminatory reason was pretextual. The first is to point to evidence that would allow a factfinder to disbelieve the employer’s reason for the adverse employment action. An employee may also point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was “more likely than not a motivating or determinative cause” of the employer’s action.

In Leibensperger, the Commonwealth Ccourt found that the two employees who bought hunting bows to work were similarly situated in that they worked for the same supervisor, performed roughly the same job duties, and were both punished for violating the policy but not terminated, even though those employees violated the dangerous weapons policy prohibiting firearms on the employer’s property. The Court also found that the fact that firearm was an inoperable, rusty, antique shotgun that was not functional created a question whether the firearms policy was even applicable to the shotgun; while the hunting bow brought to work by younger employees who were not terminated, could fall within the policy as a “dangerous weapon.”

Ultimately the Commonwealth Court concluded that given the disparate treatment of other employees as compared to the terminated employee, as well as the potentially ambiguous nature of the employer’s policy, a reasonable factfinder could conclude that the employer’s policy was not violated by bringing an inoperable gun onto the employer’s parking area and that employer’s proffered reason for terminating employment could be a pretext for discrimination. Therefore, the Court found that viewing the evidence in a light most favorable to the terminated employee there was credible evidence that a reasonable factfinder could conclude that the employer’s proffered reason for terminating employment, thus, the Court reversed the trial court’s decision.

Abramson Employment Law represents employees in age discrimination and sex/gender discrimination claims. For more information on age and sex discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126515.html,http://www.job-discrimination.com/lawyer-attorney-2130157.html,

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