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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Age Discrimination Proven When 50 Year Old+ Employees are Treated Differently than 40 Year Olds

The Age Discrimination in Employment Act (ADEA) prohibits an employer from terminating the employment of an employee or otherwise discriminating against any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment, because of age provided, that an employee is at least 40 years of age. There are two types of age discrimination claims. In a disparate-treatment case, an employee is treated differently at the workplace due to the employee’s age. For instance, a 50-year-old employee with a good performance record is terminated and his replacement is 25 years old and the employee argues that there was intent to discriminate based on age. The other type of age discrimination claim is a disparate-impact claim which addresses an employer’s action that does not require proof of discriminatory intent. In this type of case the employer’s policy at issue may be fair in form, but the impact of the policy as implemented is found to be discriminatory. Disparate-impact claims usually focus on statistical disparities that have an impact on older employees due to their age.

In defending age discrimination claims employers sometimes argue that if other employees who are 40 years of age or older were not subject to discriminatory action that somehow proves that no one in the protected class (anyone who is older than 40) could possibly have been treated differently due to their age. This argument misconstrues age discrimination law and was rejected by the United States Supreme Court over 20 years ago, in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), an ADEA disparate-treatment case, in which the court held that a 56-year-old employee who was fired and replaced with a younger worker who was over age 40 could bring a successful claim under the ADEA.

A recent United States Court of Appeals for the Third Circuit case addressed the issue of whether an employer’s policy that impacts workers over 50 due to the age could be found to violate the ADEA if the same policy did not negatively impact the entire group of employees when the group was defined as all employees over age 40. To state a prima facie case for disparate impact under the ADEA, an employee must identify a specific, facially neutral policy, and (2) proffer statistical evidence that the policy caused a significant age-based disparity. Once a plaintiff establishes a prima facie case, an employer can defend by arguing that the challenged practice was based on reasonable factors other than age. In Karol v. Pittsburgh Glass Works, LLC, no. 15-3435 (3rd Cir. January 10, 2017), the court found that in a reduction in force case where there was a company-wide layoff, a group of employees who are 50 or older could use statistical data that showed that they were treated differently due to their age. In Karlo, the question before the court was whether a disparate-impact claim is cognizable where a “subgroup” of employees at the upper end of that range-in this case, employees aged 50 or older, were alleged to have been disfavored relative to younger employees.

In Karlo, the employer, Pittsburgh Glass Works, a Pennsylvania manufacturer of automotive glass engaged in several reductions in force (“RIFs”), laying off employees due to deteriorating sales. The RIF at issue resulted in the termination of the employment of 100 salaried employees. Directors were provided with broad discretion in selecting whom to terminate and the employer did provide any written guidelines or policies as to how go about selecting which employees to lay off. In Karlo each of the employees that filed the lawsuit were 50 years of age or older and they were all selected for layoff by the same supervisor (other employees later opted into the class action lawsuit). The Third Circuit found that the central question was whether so-called “subgroup” disparate-impact claims are cognizable under the ADEA.

Disparate-impact claims in ADEA cases ordinarily evaluate the effect of a facially neutral policy on all employees who are at least forty years old, that is, all employees covered by the ADEA. In Karlo, the employees argued that they identified a policy that disproportionately impacted a subgroup of that population: only employees that were older than 50. The court held that an ADEA disparate-impact claim may proceed when employees offer evidence that a specific, facially neutral employment practice caused a significantly disproportionate adverse impact based on age with various forms of evidence by using a statistical data group of employees who were 50 years of age or older (a subgroup) rather that all employees who were 40 years of age or older. The court’s holding was premised on the principle that the ADEA prohibits disparate impact based on age, not 40 and-older identity. Thus, the court found that a rule that disallowed subgroups of age brackets over 40 would ignore genuine statistical disparities that could otherwise be actionable through application of the plain text of the ADEA.

In Karlo, relying on the Supreme Court’s decision in O’Connor the court held that a specific, facially neutral policy that significantly disfavors employees over 50 years old supports a claim of disparate impact. Thus, in Pennsylvania, employees who bring age discrimination claims under either age discrimination theory can use evidence that they were treated differently than younger employees even when those “younger” employees are over age 40.

Andrew Abramson represents Pennsylvania employees who have age discrimination claims against their employers. For more information on age discrimination see https://www.job-discrimination.com/age-discrimination.html

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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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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.

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

Employee with Chrohn’s Disease has Disability Discrimination, Failure to Reasonably Accommodate & FMLA Claims

Employees who suffer from documented disabilities, require medical leave from work and who are terminated by employers, may have claims for disability discrimination under the American with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA); as well as claims under the Family and Medical Leave Act (FMLA).

In Knight v. Callebaut USA Service Company, E. D. Pa. no. 15-6450 (December 19, 2016, Hart, M. J.), the employee was a production supervisor at a cocoa and chocolate factory diagnosed with Chrohn’s disease. The employee was hospitalized twice after experiencing abdominal pain; received treatment for bowel obstructions; and experienced diarrhea multiple times every day. Due to flare ups of his medical condition, the employee needed brief periodic breaks from ten minutes to one hour from zero to three times per shift while he was working to allow him to vomit outside. The employee had conversations with the employer’s Human Resources Manager and Site Manager to let them know what was going on. After a second three-day hospitalization, the employee was advised that his employment was terminated for an alleged theft of time and not doing his job by being on the plant floor for extended times during his work hours. The employer did not discipline the employee or allow him to explain why he was outside of the facility before terminating his employment. The employee alleged that the employer terminated his employment because of his actual/perceived disabilities and/or in retaliation for requesting reasonable accommodations; and that the employer never properly advised the employee of his FMLA rights and discouraged him from applying for FMLA leave.

To establish a prima facie case of disability discrimination, an employee must show that: (1) the employee is disabled within the meaning of the ADA; (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) the employee suffered an adverse employment decision based on that disability. The burden then shifts to the employer to articulate a legitimate business reason for the termination of employment and then the employee must then demonstrate that the stated reason is merely a pretext for discrimination.

To satisfy the ADA’s definition of disability, an employee may demonstrate: (1) an actual mental or physical impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) that the employer regarded the employee as having a disability.

To establish a failure to accommodate a disability under the ADA, an employee must prove: (1) the employee is disabled, (2) is otherwise qualified to perform essential functions of the job, with or without reasonable accommodations by the employer, and (3) the employer refused to provide a proposed reasonable accommodation, or failed to engage in an interactive process after the employee requested an available reasonable accommodation.

In Knight, the court held that the employer was at least aware of the employee’s health condition and there was disputed evidence that there was a request for some sort of leave of absence for medical treatment, which could constitute a reasonable accommodation under the ADA. Thus, there was sufficient evidence for the case to proceed to trial on the ADA request for reasonable accommodation claim. The court also concluded that the employee could demonstrate a prima facie case of disability discrimination since it was undisputed that the employee requested leave for medical treatment when admitted to the hospital. Further, given that the employee was terminated immediately after returning from a leave that occurred after he had to leave his shift for medical reasons, there was sufficient evidence to create a factual question of pretext, permitting the ADA disability discrimination claim to proceed to trial.

The FMLA provides that it is unlawful for any employer to interfere with, restrain, or deny the exercise of FMLA rights. To establish FMLA interference, an employee must demonstrate: (1) that the employee was entitled to benefits under the FMLA and (2) the employer denied FMLA benefits. An employee is not required to expressly invoke the FMLA; the employee must only provide notice of the request for leave and state a qualifying reason for the leave. A scheduled block of time for treatment and testing or intermittent leave is protected by the FMLA and an employer’s failure to advise an employee of FMLA rights can constitute an interference of the employee’s FMLA rights.

In Kline, the court held that the employee provided sufficient facts to support a FMLA interference claim in that he was deprived of the right to make informed decisions and to plan accordingly when structuring his leave because he was not advised of his rights to 12 weeks or intermittent periods of job protected leave.

In a FMLA retaliation claim, an employee must demonstrate that (1) the employee is protected under the FMLA, (2) the employee suffered an adverse employment action, and (3) the adverse action was causally related to the exercise of FMLA rights. Then the burden shifts to the employee to provide evidence of a legitimate reason for the adverse employment action. Once the employer sets forth a legitimate reason, the employee must point to some evidence that the employer’s reasons for the adverse action are pretextual.

In Kline, the court held that the employee’s need to take time off to treat his medical condition was both a request for accommodation under the ADA and a request for leave under the FMLA. In so doing, the court found that the fact that the employer classified the employee’s leave as FMLA is sufficient to set forth a prima facie case that FMLA rights had been invoked and that the termination of employment was clearly an adverse employment action. As to the casual connection requirement, the fact that employment was terminated immediately upon return from leave was sufficient evidence of causation; particularly combined with fact that the employee has no prior disciplinary history. Thus, the FMLA retaliation claim could also proceed to trial.

For more information on the Family and Medical Leave Act (FMLA), Disability Discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126523.html, job-discrimination.com/lawyer-attorney-1126511.htm, http://www.job-discrimination.com/lawyer-attorney-2122109.html

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Filed under Americans with Disabilities Act - Disability Discrimination, Employment Law, FMLA