Category: Discrimination

Third Circuit Finds Age Discrimination

By ,

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

By ,

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

By ,

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

By ,

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

By ,

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

By ,

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

By ,

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.

Hostile Work Environment and Religious Discrimination

By ,

All Circumstances Must Be Looked At Together When Determining Whether There Was A Hostile Work Environment Based On Religious Discrimination

Under Title VII, five elements must be proven to win a claim based on a hostile work environment due to religious discrimination. Abramson v. William Paterson College of New Jersey, 260 F. 3d 265 (3d Cir. 2001). The plaintiff must show, (1) they suffered intentional discrimination because of religion; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected them; (4) the discrimination would detrimentally affect a reasonable person of the same religion in that position; and (5) the existence of respondent superior liability. Id. at 276-77.

In Abramson, plaintiff was a professor who claimed discrimination and retaliation based on her religion – being an Orthodox Jew. Id. at 269-77. The Third Circuit held that to prove intentional discrimination, no direct proof of the harasser’s intent is needed, mostly because animus is difficult to conclusively prove. Id. at 278. Abramson provided enough proof because the incidents that lead to her termination had to do with her insistence that she could not work during Jewish holidays or on holy days. Id. at 279. Additionally, because Abramson needed to miss work because of Jewish holidays, her supervisors began to treat her negatively, including yelling about her “complaining”, and scheduling events on Jewish holy days purposefully so Abramson had to choose between work and her religion. Id. at 272. For each of these prongs, the Third Circuit reiterated that all of the circumstances must be looked at together and not as individual incidents. Id. at 279-80; see also, Durham Life Ins. Co. v. Evans, 166 F.3d 139, 155 (3d Cir.1999).

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Advocate for Victims Discrimination in the Workplace

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

Courts Increasingly Allow Title VII Lawsuits for Sexual Orientation

By ,

While not expressly dealing with this question, the Eastern District court of Pennsylvania (which includes Philadelphia) has addressed the effect of perceived homosexuality on a claim of sexual harassment.  Asking your co-worker about his/her sexual orientation could be construed as implicating a homosexual perception of that co-worker’s sexual orientation because it questions that co-worker’s presumed heterosexuality. Onacle v. Sundwoner Offshore Services, Inc., 118 S.Ct. 998, 1002-03 (1998) (the Supreme Court asserts this presumption by explaining the relative ease and acceptability of assuming an opposite sex harassment scenario is implicitly based on sex).  Asking about your co-workers’ sexual orientations in and of itself is not enough to create liability for sexual harassment.  However, the allegation of the existence of a perception of homosexuality based on your questioning will overcome a motion to dismiss in a wider sexual harassment claim because it adequately asserts that an unwelcomed harassment’s motivation was sex-based.

Sexual harassment is a form of sex discrimination which the U.S. Supreme Court has extended to same sex scenarios where the harassee is harassed for not complying with gender stereotypes. Price Waterhouse v. Hopkins, 109 S.Ct. 1775, 1790-91 (1989).  This has become one of three bases the 3rd circuit now recognizes for successful sexual harassment claims (“1) alleged harasser sexually desired the plaintiff 2) alleged harasser was expressing general hostility to one gender in the workplace 3) the alleged harasser was punishing the plaintiff for not complying with gender stereotypes”).  Bibbly v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262-63 (3rd Cir. 2001).  The Third Circuit has denied the application of Title VII claims based on sexual orientation because congress has only established that Title VII protects individuals from discrimination based on race, sex, and national origin. Id. 261. However, the Supreme Court explained in Price, that harassment based on gender-nonconformity, demonstrated by the harassee’s outward physical behavior in the work-place, is discrimination based on sex.  Price, 109 S.Ct. 1775, 1782; Vickers v. Fairfield Medical Center, 453 F.3d 757, 763 (6th Cir. 2006).

While arguments have been unsuccessfully made that one’s sexual orientation is a stereotype attached to gender (i.e. arguing it is a stereotype that men are attracted to women) courts have refused to allow such a broad interpretation of Price to maintain the differentiation between harassment based on sex (which Title VII does allow) and harassment based on sexual orientation (which Title VII does not expressly allow or disallow). Vickers, 453 F.3d 757, 763.  However, the Eastern District has made clear that an allegation that the harasser perceived the harassee as gay or lesbian can overcome a motion to dismiss because such an allegation implicates the potential for there having been gender non-conforming behavior.  E.E.O.C. v. Turkey Hill Dairy, Inc., 2007 WL 2407095 at 4-5 (E.D. Pa. Aug. 8, 2007). While potentially a fallacy because it assumes all gay men and women are gender non-conforming, this clarifies what might be permissible and impermissible conduct. In E.E.O.C. v. Turkey Hill Dairy, the plaintiff, who denied being gay, had faced 17 months of daily harassment and had eventually been fired, alleged sufficient facts to claim the harasser sexually desired him (the defendant had blown kisses at him and had whistled flirtatiously at him) and that the defendant was punishing the plaintiff for not complying to gender stereotypes (the defendant had called him a whore and a bitch). Id. 2-4.  In addition to having found that these facts were sufficient to overcome a motion to dismiss, the court went on to say that alleging harassment for perceived homosexuality was also sufficient to overcome a motion to dismiss. Id. 4.  This was because, “[such allegations] can also be construed to support a claim based on [a plaintiff] not conforming to gender stereotypes.” Id.  Perceived homosexuality can imply the possibility of the existence of other behavior that is non-gender conforming.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Those Experiencing Harassment Due to Their Sexual Orientation

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

Proving Age Discrimination in Pennsylvania

By ,

Like the federal Age Discrimination in Employment Act (ADEA), the Pennsylvania Human Relations Act (PHRA) prohibits employment discrimination based on age. To successfully bring a PHRA claim of age discrimination through termination or replacement, an employee must show evidence demonstrating that 1) he or she belonged to the protected class of persons 40 years of age or older; 2) he or she was performing duties that he or she was qualified to perform; 3) he or she was discharged; and 4) that a continuing need for the services the employee had been performing existed. See 1 Summ. Pa. Jur. 2d Torts § 12:63 (2d ed.).

In order to prevail on a claim alleging age discrimination in termination, the employee has the sometimes-difficult burden of proving that his or her age was in fact the actual motivation and determinative influence in the employer’s decision to fire the employee.

As was made clear in the case of Glanzman v. Metropolitan Management Corp., the replacement of an older employee by a younger one does not necessarily permit the inference that such a replacement was motivated by age discrimination. 391 F.3d 506. Once an employee presents the necessary direct evidence of discrimination, the burden shifts to the employer to prove that they would have fired the employee even if they had not considered the employee’s age. The employer in Glanzman was able to list several other causes for firing, including, inter alia, the employee’s failure to timely respond when paged, lying, and making excessive personal calls on the office phone. Therefore, the employer successfully rebutted the employee’s prima facie case of age discrimination by relying on evidence of these other causes for firing.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Advocate for Victims of Age Discrimination

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