Category: Discrimination


Courts Increasingly Allow Title VII Lawsuits for Sexual Orientation

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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

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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.

Philadelphia Employment Lawyers: Janitor Wins Age Discrimination Case

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A janitor in Massachusetts has won his age discrimination case against his former employer, Massasoit Industrial Corporation. The 74-year-old man was fired before learning his job had been replaced by a 68-year-old woman. The case had previously been decided in favor of the plaintiff by the Massachusetts Commission on Discrimination in 2007. Massasoit later appealed the ruling in Superior Court. The Superior Court upheld the Commission’s decision that the termination constituted a violation of state laws against age and disability discrimination.

This case of wrongful termination occurred after the plaintiff had worked for Massasoit for 21 years. He started his job in 1986 at the age of 54 as a part time custodian in the outside maintenance department. From 1997, he was performing general custodial work at the Registry of Motor Vehicles (RMV). The worker was a very dependable worker who had never missed a day of work for illness or called in sick to work. His personnel record with Massasoit was spotless.

One day in March of 2007, the plaintiff felt unwell and had to leave work. After being diagnosed with pneumonia, he spent three days in the hospital. He asked his daughter-in-law to notify a co-worker that he would not be coming to work. The co-worker in turn said he would tell their supervisor. Shortly after being released from the hospital, the plaintiff again felt unwell and was readmitted for a heart attack. Again, the same co-worker assured him that he would notify their supervisor of the return to the hospital. This co-worker also visited the plaintiff in the hospital and assured him that the supervisor had been notified.

In May 2007, the plaintiff returned to work with a doctor’s note stating that he was cleared to return to work without any health restrictions, but he was informed by the manager that his position had been terminated. When he asked for a reason, his employer stated that he was fired because he was a so called “no call/no show.” All attempts to retain his employment were unsuccessful. His replacement, a 68-year old woman, was hired June 1, 2007.

The plaintiff filed a complaint with the Massachusetts Commission on Discrimination alleging age and health discrimination, and was successful. He was awarded damages of $55,650 in wage compensation and $35,000 for emotional damages. His attorney’s fees were also covered.

The appeals court decision described the evidence as “more than sufficient” that Massasoit Industrial Corporation regarded the plaintiff as disabled when they fired him.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Those Who Have Been Wrongfully Terminated

Discrimination is against the law and if you have been wrongfully terminated, the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. will fight to make sure you receive the compensation you are owed. Contact us today to arrange a confidential consultation at our Philadelphia offices to discuss your case. Call us at 215-574-0600 or contact us online.

Philadelphia Employment Lawyers: Philadelphia Passes Wage Equity Bill

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In an effort to close the wage gap between men and women, Philadelphia Mayor Jim Kenney recently signed a bill preventing employers from asking applicants about their salary history. The Wage Equity Bill makes Philadelphia the first major American city to ban employers from asking candidates what they were paid at previous jobs. Companies in violation of the new ordinance face fines of up to $2,000.

The bill, first introduced in September 2016, is designed to eliminate the income disparity between men and women. According to a 2015 United States Census Bureau report, women make 79 cents for every dollar that men make. This discrepancy exists regardless of experience, education, or industry. The Pew Research Center also reports that as of 2015, women earn 83% of men’s hourly wages.

The rationale behind the bill is that if women are paid less than what they deserve at beginning of their careers, and potential employers base their salary on previous jobs, they will never catch up to their male counterparts. Though similar legislation already exists in Massachusetts, Philadelphia is the first major city to ban salary inquiries. New York State and Pennsylvania are also considering passing wage equity bills.

The City Council passed the bill with a unanimous vote, but it is already experiencing some pushback from one of the city’s largest employers – Comcast. The media giant, with headquarters in Center City Philadelphia, has already vowed to challenge the ban in court on grounds that it violates employers’ free speech. The Greater Philadelphia Chamber of Commerce also opposes the bill, saying it gives the perception that the city is “anti-business,” and discourages new employers from setting up shop in Philadelphia.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Clients in Wage Disputes

The team of Philadelphia employment lawyers at Sidkoff, Pincus & Green understands the complexities of employment law matters. Our attorneys represent employees in all aspects of employment law, including wage disputes. Call our Center City Philadelphia offices today at 215-574-0600 or contact us online to schedule a consultation with one of our attorneys.

We serve clients throughout the Greater Philadelphia area including Delaware County, Montgomery County, Philadelphia County, and the towns of Bala Cynwyd, Merion Station, Wynnewood, Darby, Narberth, Upper Darby, Sharon Hill, Cheltenham, Clifton Heights, Folcroft, Lansdowne, Drexel Hill, Elkins Park, Havertown, Glenolden, Ardmore, Gladwyne, Wyncote, Norwood, Holmes and Haverford, as well as New Jersey.

Philadelphia Business Lawyers: Arbitration Clauses Not Always Enforceable or Advisable

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Arbitration is an alternative to litigating in court and it may lead to a cheaper and more expedient result. It also may be favorable to both sides in certain situations, particularly when it concerns two equal parties with access to equivalent resources saving time and money for all concerned. However, arbitration is often a disadvantage when the playing field is not level,  and for that reason, it is a common tool used by big business against consumers and employees.

Recently the American multinational technology conglomerate, Cisco, tried to force a lawsuit by one of its employees into arbitration and lost in San Francisco Superior Court. An employee filed an age discrimination claim against Cisco. The company responded by stating that the employee had given up the right to sue when she signed her employment contract because it included a clause that said any disputes must be settled by binding arbitration. However, the clause about arbitration was buried within a form that was mainly about intellectual property claims – something every employee must sign in order to be able to work at Cisco.

Judge Harold Kahn ruled that in effect, Cisco had surprised the employee with the arbitration requirement by putting the language in one paragraph on page five of a seven page, single spaced document about proprietary information. Moreover, the language stated that the employee was also obligated to pay half the costs of any employment disputes that went to arbitration, which is against California regulations.

Arbitration is a Common Practice for Companies

Cisco is not the only company trying to use arbitration to its advantage. Wells Fargo is still recovering from the scandal that broke when the practice of opening multiple accounts in a customer’s name without their knowledge became public. Victims seeking justice were forced into binding arbitration by the bank. The original accounts had a clause about arbitration which the bank said also applied to any subsequent disputes. Due to the fact that most results of arbitration cases are not a matter of public record, the scale of the Wells Fargo scandal was kept under wraps for longer than it would have been in a court of law.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Defend Those Being Forced Into Arbitration

Consumers and employees need to be aware of arbitration clauses because they are extremely common. At Sidkoff, Pincus & Green, we have experience representing consumers and individuals in arbitration matters, and in court.

If you have a matter that is in arbitration, or you are concerned about signing a contract with an arbitration clause, please feel free to contact the Philadelphia business lawyers at Sidkoff, Pincus & Green, P.C.. Call us at 215-574-0600 to schedule an appointment or contact us online. We serve clients throughout Pennsylvania and New Jersey.

 

 

Philadelphia Employment Lawyers: Sexual Orientation Discrimination

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In a recent groundbreaking ruling, a Pennsylvania district court found that discrimination based on someone’s perceived sexual orientation falls under the protections of Title VII of the Civil Rights Act of 1964. The individual involved in the case was a homosexual man employed as a telemarketer by Scott Medical Health Center. The lawsuit alleged his manager made offensive and unwanted comments to him about his sexual orientation several times a week. He further claims that he was asked explicit questions and was exposed to homophobic slurs. The man claims he reported the conduct to the health center’s president, but no action was taken to stop the harassment. Ultimately, the man says that he was constructively discharged because the treatment he endured created a hostile work environment.

The defendants moved to dismiss the claim on the grounds that perceived sexual orientation was not protected under Title VII.  However, the court ruled against defendants, finding no meaningful difference existed between sexual orientation discrimination and discrimination because of sex. The court noted that sex stereotyping included assumptions about how a person’s sexuality should conform to their sex and gender. The court ultimately likened the plaintiff’s experience to that of a female employee who is told to dress more femininely, or wear make-up and jewelry in order to achieve promotion. The court cited recent decisions across the U.S. Courts that have increasingly been finding that sexual orientation is a Title VII protected trait. The court also drew from the Supreme Court opinion legalizing same-sex marriage.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Employees in Sexual Discrimination and Sexual Harassment Claims

If you have suffered an adverse employment action such as failure to hire, termination, or denial of a promotion on the grounds of your sexual orientation or because of your gender, you may have a valid discrimination claim. Philadelphia employment lawyers at Sidkoff, Pincus & Green will fight back against injustice. We seek maximum compensation for damages suffered as a result of discrimination. To learn more about how we can help you, call us at 215-574-0600 or contact us online today.