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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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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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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Caucasian Television Anchor Proceeds with Race Discrimination Case

In Pennsylvania employment discrimination cases, evidence that can be used to establish race discrimination by a terminated employee may take many forms. A recent decision in O’Toole v. Hearst Stations, Inc., W. D. Pa.  no. 16-879 (November 18, 2016) (Eddy, M. J.), demonstrates the type of evidence that a Caucasian employee may be able to use to attempt to establish that the true reason for the termination of employment is race discrimination.

In O’Toole, the employee was the main news anchor at a Pennsylvania television station who was repeatedly praised throughout her career for professional expertise, judgment, and work ethic; and she won more than 20 regional Emmy awards for broadcast excellence. As part of the employee’s duties as a reporter and anchor, the employer encouraged the employee to use a Facebook page as a platform to engage and communicate with the television audience about the stories the employee covered. The employee covered a story involving a shooting that resulted in six deaths. The employee wrote on the Facebook page, “you needn’t be a criminal profiler to draw a mental sketch of the killers who broke so many hearts two weeks ago “… they are young black men, likely in their teens or early 20s.” The employee also wrote a second Facebook comment praising a young African-American man who worked in an area restaurant writing, “I wonder how long it has been since someone told him he was special.”

The employee’s Facebook posts caused considerable controversy, and complaints from individuals and organizations purporting to speak on behalf of the African-American community. The employer’s management met with one organization to discuss the employee and issues of racial diversity. The same day, the employer terminated the employee, stating that the employer’s reason for firing was because the employee’s posts were inconsistent with the company’s ethics and journalistic standards.

The employee filed litigation in federal court alleging that she was fired because of her race in violation of 42 U.S.C. §1981. The employee argued that if she had written the same exact comments about white criminal suspects she would not have been fired, and that if the employee was not white but made the same comments, she would not have been fired. The employee also alleged that her Facebook posts were clearly and obviously not intended to be racially offensive and that the employer admitted that she is not a racist and that she was not posting racially offensive material. Thus, the employee alleged that the employer’s publicly stated reason for the termination of her employment, that the postings were inconsistent with the company’s ethics and journalistic standards, is pretextual.

In order to prove a what the law terms as a “prima facie case” of race discrimination, an employee must show that the employee (1) is a member of a protected class; (2) the employee is qualified for the position; (3) the employee suffered an adverse employment action, and (4) that circumstances exist that give rise to an inference of unlawful discrimination. The fourth element can be established through evidence that establishes that other employees outside the protected class were treated differently, or when an employee points to circumstantial evidence that otherwise shows a causal nexus between the employee’s membership in a protected class and the adverse employment action.

In O’Toole, the employee alleged that the evidence of circumstances that give rise to an inference of unlawful discrimination consists of the employer consistently downplaying misconduct by similarly situated reporters and anchors because of their race or gender, and retaining or hiring news reporters and anchors irrespective of their public misconduct. The employee identified two other employees as potential comparators. In denying the Motion to Dismiss, the Court relied upon law in Pennsylvania federal courts that holds that whether individuals are similarly situated is a fact-intensive inquiry which has to be made on a case-by-case basis, rather than in a mechanistic and inflexible manner, and as a consequence, a Motion to Dismiss at the onset of case is not the appropriate stage of the litigation to decide whether an employee outside the protected class who was treated differently is similarly situated. The court also held that evidence that the employer stated that the employee is not racist and that her comments were not racially offensive could be used to establish a reasonable inference of proof of circumstances that give rise to an inference of unlawful discrimination.

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

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