Category: Discrimination


Eastern District of Pennsylvania Rules Against Plaintiff’s Claim that Arbitration Clause is Unconscionable

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In Curtis v. Cintas Corporation, Plaintiff was terminated by her employer and she asserted claims for racial discrimination and retaliation.  229 F.Supp.3d 312, 315 (E.D. Pa. 2017).  Although Plaintiff sought to litigate her case in court, Defendant moved to dismiss her claims, and in the alternative, stay proceedings pending arbitration, as Defendant claimed that Plaintiff’s employment agreement contained an arbitration clause. In response, Plaintiff asserted that the arbitration agreement was unconscionable and therefore, invalid and unenforceable.

Under Pennsylvania law, to prove a claim of unconscionability, a plaintiff must prove that the contract was both substantively and procedurally unconscionable. Substantive unconscionability occurs when the contractual terms are unreasonable or grossly favorable to one side, which the disfavored party does not assent to.  In this case, Plaintiff asserted that Defendant is inherently favored because the employer pays the costs for arbitration.  However, the Eastern District Court of Pennsylvania pointed to case law stating that limiting costs to one party does not support a finding of substantive unconscionability. Procedural unconscionability pertains to the process in which an agreement is reached, but the form of the agreement is unclear.  Here, Plaintiff claimed that the agreement was procedurally unconscionable because she signed only on the last page, and that page did not contain an arbitration clause.  However, the Court explained that there is no requirement in Pennsylvania to affix a signature to each section or page of an agreement to manifest an in intent to be bound by the terms.

For more information, call our employment lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

E.D.P.A. Overrules Motion to Dismiss

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Claims Plaintiff Alleged Sufficient Facts Demonstrating Pervasive Sexual Harassment

A claim for sexual harassment can be established by proving a hostile or abusive work environment. To prove such a claim, a plaintiff must establish: “(1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability[, where an employer is liable for an employee’s negligent actions or omissions that occur during the course of the employee’s employment].” Hawk v. Americold Logistics, LLC, 2003 U.S. Dist. LEXIS 3445, at *12 (E.D. Pa. 2003).

The trial judge considers the totality of the circumstances when considering a sexual harassment claim. The judge will consider factors such as, the frequency of the harassment, its severity, whether it is physically threatening or humiliating, whether it unreasonably interferes with employee’s work performance, and its effect on the employee’s psychological well-being. For instance, in Hawk, the judge took into consideration that the harassment occurred every day in the form of unwelcome phone calls to the employee, that the harassment was severe by being physically grabbed and shoved against a wall, the employee was humiliated in the sense that she was followed by the harasser around the workplace and was constantly interrupted when conversing with other men co-workers by the harasser, and the employee was emotionally distraught when discussing her harasser during an interview with her employer. The Pennsylvania Eastern District Court found that a jury could “certainly” find that the employee was harassed and that it would detrimentally affect a reasonable person in the same position, denying a motion to dismiss.

For more information, call our sexual harassment lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

Separate Companies can be Joint Employer

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For Purposes of Title VII and §1981 Claims

The Eastern District of Pennsylvania denied a Motion to Dismiss because Plaintiff had pled sufficient facts to show that Defendant companies could be “joint employer[s]” or a “single employer.” Anderson v. Finley Catering Co., 218 F. Supp. 3d 417, 423 (E.D. PA. 2016).

Plaintiff alleges “race discrimination, retaliation, and hostile work environment claims against both Defendants pursuant to Title VII and § 1981.” In Anderson, Plaintiff was the only African American male who worked full time as a cook in Defendants’ catering business. Plaintiff alleges in his Complaint that the management at the catering business made racial jokes and remarks about Plaintiff and gave Plaintiff more undesirable work than they did to other employees who were not African American. After Plaintiff complained to the management about the racial discrimination, some people from the management “called Plaintiff a “snitch” and warned him that he needed to watch what he said.” Following Plaintiff’s complaint, management cut Plaintiff’s hours from 40 to 3 hours per week. After Plaintiff filed for unemployment compensation benefits, management demoted Plaintiff from his position as a cook to dishwasher. Further, following this demotion, management failed to place Plaintiff on a work schedule.

The Court denied dismissal of the case. Defendants argued that the case should be dismissed because Plaintiff’s employer was Union Trust and there was not “sufficient facts” to make the claim that Finely Catering was “liable under either a “joint employer” or “single employer” theory.”  The Court held that the Plaintiff has pled “sufficient facts” at this step in proceedings that “Finley Catering and Union Trust are both owned by Steve Finley, share common management and operations, and have centralized control of labor relations and common financial controls.” Therefore, the Court can “reasonabl[y] infer” that the companies are “either joint employers or a single employer.”

For more information, call our Philadelphia employment lawyers at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

Third Circuit Finds Age Discrimination

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Mandatory Age Retirement Case

The Third Circuit Court of Appeals recognizes that an employer’s forceful retirement of an employee after his or her 65th birthday violates the Age Discrimination in Employment Act. In Maxfield v. Sinclair Int’l, 766 F.2d 788 (3d Cir. 1985), the plaintiff Maxfield was employed by Sinclair International from 1940 until 1980. Shortly before his 65th birthday during a conversation with the company’s founder, Maxfield was questioned about his plans for retirement. When Maxfield vocalized his intentions to work until he was 70 years old, the founder articulated that if Maxfield did not retire on his 65th birthday, Sinclair International would find reason to retire Maxfield. One month later, Maxfield learned that the company decided to “retire him” and would be replacing him with another younger employee.

The Court ruled that Maxfield made a prima facie case of age discrimination by showing that he was replaced by an employee more than 20 years younger, and that Maxfield’s social security benefits could not be set off against damages. Lastly, the court found that Maxfield was entitled to “front pay”, a financial award for future earnings.

For more information, call our employment discrimination lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

EDPA Dismisses Disability Discrimination Claim

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Failure to Exhaust Administrative Remedies

The Eastern District of Pennsylvania recently dismissed Plaintiff’s claim for disability discrimination and claim for retaliation because she failed to exhaust her administrative remedies. McIntosh v. White Horse Vill., Inc., 176 F. Supp. 3d 480 (E.D. Pa. 2016).

Plaintiff alleged religious discrimination, racial discrimination, disability discrimination, and retaliation in her Amended Complaint. In McIntosh, Plaintiff worked as a Licensed Practical Nurse (“LPN”) at a retirement home. Full time LPNs are supposed to work on Sundays. She requested an accommodation to be excused from working on Sundays because she wanted to participate in religious services on those days. She was provided this accommodation. Later, she requested and received an FMLA leave for her surgery. Upon returning from her leave, she requested an accommodation to be excused from working on Sundays. The new Director of Nursing denied this request. Plaintiff alleges that she had to step down from her full time position as an LPN to per diem to be able to attend services on Sundays. In Plaintiff’s Amended Complaint that she filed with the Equal Employment Opportunity Commission (EEOC), she alleged religious discrimination and retaliation, race discrimination and retaliation, violations of the FMLA, violations of the ADA, and violations of the PHRA. Defendant moved to dismiss Plaintiff’s counts under the ADA and PHRA, on the basis that those claims were not procedurally exhausted.

The Court dismissed the claims for disability discrimination and retaliation because the Plaintiff failed to exhaust administrative remedies. The Court reasoned that Plaintiff failed to claim disability discrimination in her Charge to the EEOC. Further, she did not have anything in her Charge to the EEOC that would lead the Court to infer that she was alleging a disability discrimination.

For more information, call our employment lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

A Single Word can Create Liability for Hostile Work Environment

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It has long been the case that a single slur or offensive comment is not enough in order to prevail on a hostile work environment claim. However, this is no longer the case after the Third Circuit’s recent decision in Castleberry v. STI Grp., No. 16-3131, 2017 WL 2990160, at *3 (3d Cir. July 14, 2017). On appeal, the Third Circuit overturned the Middle District’s ruling.  In doing so, the Court explained that the “plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African-American co-workers…Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred).” Id. at 4.  Under these facts, the Third Circuit held that a single offensive slur creates severe conduct that could make a hostile work environment; reversing the long history of prior courts in Pennsylvania, New Jersey, and Delaware that require the conduct to be regular. This new standard is a win for future plaintiffs alleging a hostile work environment because it will now be easier to succeed on their claims.

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C., handle cases involving workplace discrimination. Call 215-574-0600 or contact us online to arrange a consultation in our Philadelphia office, where we represent clients in Pennsylvania and New Jersey.

Protections for Transgendered Employees

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Recently, a federal court judge ruled that a transgendered woman could proceed with a lawsuit for employment discrimination under the Americans With Disabilities Act (ADA). As the law currently stands, transgendered individuals are excluded from protection under the ADA. However, the rights and protections afforded to the transgender community are rapidly expanding at the federal, state, and local levels. This recent decision confirms that, as the District Court judge allowed the case to proceed under a new theory, that gender dysphoria can limit an individual’s major life activities, such as reproduction and social interaction.

The plaintiff, Kate Lynn Blatt, is the first transgendered individual to file a lawsuit under the ADA. She has alleged that her former employer, Cabela’s, a retailer of outdoor equipment located in Hamburg, Pennsylvania, forbid her from using the women’s bathroom and required her to wear a name tag displaying her male birth name. Blatt also alleges her co-workers referred to her as “he/she,” “freak,” “ladyboy,” and asked her questions about her genitals. Eventually, her employment terminated when her employer alleged that she threatened a co-worker’s child at work. Blatt denies this occurred. She subsequently sued Cabela’s alleging that she was mistreated and fired based on her gender-identity-related disability, or gender dysphoria.

Gender dysphoria is a condition where the person feels like their psychological identity differs from their biological gender. The American Psychiatric Association (APA) does not classify transgender as a disorder, however, gender dysphoria is a type of anxiety that may require psychological medication and treatment.

Cabela’s filed a motion to dismiss on grounds that the ADA expresses excludes gender identity disorder as a disability. The court denied Cabela’s motion, leaning on Blatt’s citation to the legislative history of the act as intended to protect historically and politically marginalized individuals based on an immutable characteristic.

The District Court judge sidestepped the issue as to whether the ADA was constitutional, based on the doctrine of constitutional avoidance. He determined that the case could proceed on grounds that the law should be broadly construed to give individuals with disabilities recourse to pursue claims against their employers for discrimination.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Victims of Discrimination

The laws surrounding LGBTQ rights and protections is rapidly evolving. Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. stay up to date on the most recent developments for LGBTQ rights in the employment litigation context. If you suspect that you have been discriminated against based on your sexual identity or other characteristic, call us today at 215-574-0600 or contact us online. We can help you determine whether you have a viable claim and advise you on how you should proceed.

Third Circuit Endorses Medical Resident Claims

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The Court of Appeals for the Third Circuit recently addressed an important question: whether medical residents who allege sexual harassment and retaliation should be treated as employees, students, or both. This is a critical distinction because it determines whether a plaintiff can file a claim under Title VII, or Title IX—each law has different remedies and ramifications for plaintiffs. The court determined medical residents should be treated as both students and employees in this context.

Case Background

Mercy Catholic Medical Center in Philadelphia has four accredited medical residency programs. The unnamed plaintiff was enrolled in one of these programs in 2011, during which time she alleges that the director of the residency program sexually harassed her. She complained to Mercy’s Human Resources Department, which allegedly took no action. The woman further claims she was ultimately removed from the program at the Director’s suggestion in retaliation for rejecting his advances.

The victim filed suit against Mercy under Title IX. The federal district court dismissed her complaint on grounds that Mercy’s residency program was not an “educational program,” and even if it were, she still needed to exhaust her administrative remedies. The court noted that Title VII is the exclusive avenue for relief for employment discrimination claims.

On appeal, the court considered whether the residency program was an “educational program” under Title IX. The court adopted a decades-old definition used in O’Connor v. Davis, which stated that an educational program is one that has features “such that one could reasonably consider its mission to be, at least in part, educational.” According to the court, the analysis as to whether a residency program is educational is a mixed question of law and fact.

The court ultimately found that Mercy falls within the parameters of Title IX, noting that the medical center accepts federal Medicare payments to fund its programs. Its residents are enrolled in a regulated program of study and training, which requires students to work closely with faculty, attend lectures, and take annual exams.

The court found that as the plaintiff was also an employee, she had to bring her claim under Title VII, which requires an exhaustion of administrative remedies before a plaintiff can avail themselves of the judiciary. However, the court further determined that she was not precluded from bringing a private cause of action under Title IX.

The case set forth a list of factors for courts to examine when determining whether a program is a Title IX “educational program or activity,” and as such, is precedential. However, the Third Circuit’s opinion failed to answer the question regarding whether Title IX plaintiffs have the same rights as those who seek protection under Title VII. This, along with several other questions, remains unclear.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Cases Involving Employment Discrimination and Sexual Harassment

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. handle employment law and sexual harassment claims throughout Pennsylvania and New Jersey. To discuss your case, call us today at 215-574-0600 to schedule a consultation or contact us online.

Philadelphia Cracking Down on Discriminatory Business Practices

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The Fair Practice Ordinance of the Philadelphia Code (FPO) prohibits businesses from discriminating (against patrons) on the basis of race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, familial status, genetic information, or domestic or sexual violence. Recently, there has been public outcry over alleged discrimination toward LGBT people in some Philadelphia bars and restaurants. In light of this, Mayor Jim Kenney recently signed a bill amending the FPO to more stringently punish businesses who engage in “severe or repeated violations” without efforts to remediate such practices by authorizing the Philadelphia Commission on Human Relations (PCHR) to order a business to cease operations “for a specified period of time.” The PCHR will eventually enact further regulations to clarify the meaning of “severe and repeated” and “effective efforts” or the length of time are.

Philadelphia’s amended FPO law comes at a critical time in the unfolding of discriminatory business-patron regulations nationwide. This June, the Supreme Court decided to grant cert to a related case involving a baker in Colorado refusing to bake wedding cakes for same sex couples because of his religious beliefs. The Court will hear Masterpiece Cake Shop v. Colorado Civil Rights Commission in the coming term; its outcome will likely have determinative implications for the enforceability, or lack thereof, of laws like the FPO.

For more information, contact our Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Religious Disparate Treatment

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Failure to Accommodate in the Workplace

Under Civil Rights Act of 1964, Title VII, two types of religious discrimination can be shown, disparate treatment or a failure to accommodate to prove Religious discrimination in the workplace. Abramson v. William Paterson College of New Jersey, 260 F. 3d 265, 281 (3d Cir. 2001).

To prove disparate treatment a plaintiff must show he or she (1) is a member of a protected class, (2) was qualified and rejected for the sought after position and (3) nonmembers of the protected class were treated more favorably. Id. There must also be evidence that the employer had knowledge of the plaintiff’s religion before the discriminatory acts. Morrison v. Access Services, Inc., No. 14-4685, 2014 WL 5286604 at *4 (E.D. Pa. Oct. 15, 2014). This type of suit is normally brought if there was a deserved promotion the plaintiff was passed over for because of religious discrimination. See, e.g., Abramson, 260 F. 3d 265; Baker-Bey v. Pennsylvania Dept. of Corrections, No. 06-cv-5490, 2008 WL 2856397 (E.D. Pa. July 23, 2008).

To prove failure to accommodate a plaintiff must show he or she (1) has a genuine religious belief that conflicts with an employment requirement, (2) informed the employer of this belief and (3) was disciplined for failure to comply with the conflicting employment requirement. Protos v. Volkswagen of America, Inc., 797 F.2d 129, 133 (3d Cir. 1986). This suit is normally brought when there is a conflicting religious occasion with work and when an employee misses the work they were punished for it. Generally, the courts look to the “undue burden” that the employee would cause the company by missing work. Id. In Protos it was found that one employee in an assembly line would not alter production or place any burden on the company. Id. at 135.

For more information, contact our Philadelphia religious discrimination lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.