Category: Employment Law

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.

Sexual Comments and Hostile Work Environment

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Sexual Comments Must Rise Beyond “Mere Utterance” To Create a Hostile Work Environment

When considering conduct at the workplace to rise to the level of a hostile work environment claim, it is important to know that not every sexual joke can create a hostile work environment. “The mere utterance of an epithet, joke, or inappropriate taunt that may cause offense does not sufficiently affect the conditions of employment to implicate Title VII liability.” Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir.2001).

In one particular case, co-workers’ conduct was pervasive and offensive enough to not be considered “ordinary tribulations of the workplace.” Brown-Baumbach v. B&B Auto., Inc., 437 F. App’x 129, 134 (3d Cir. 2011). A few examples of the conduct in Brown-Baumbach included a joke that she “creamed her pants” after spilling ice cream, rumors of plaintiff and a supervisor “getting it on,” and the supervisor telling plaintiff that heels “turn him on.” 437 F. App’x at 131-32. The conduct however, must also be directed towards the specific employee in order to have a valid hostile work environment claim. See Betz v. Temple Health Sys., No. 15-CV-00727, 2015 WL 4713661, at *4 (E.D. Pa. Aug. 7, 2015). In Betz, the plaintiff’s fellow female coworkers regularly engaged in inappropriate conduct, such as pretending to grope each other daily or suggesting inappropriate ways to avoid a speeding ticket from a cop. Id. at *1. Although the court recognized this kind of behavior should not be in the workplace, their behavior was not aimed specifically at the plaintiff and in fact were “equal opportunity offenders.” Id. at *4.

An example of language that fails to meet the tough burden of a hostile work environment claim can be found within Spangler v. City of Philadelphia, 523 F. App’x 142 (3d Cir. 2013). In Spangler, a male supervisor referred to the plaintiff as a “bitch.” Id. at 146. The court acknowledged the “reprehensible nature” of the language, but did not find enough for discrimination just because the word has “‘sexual content or connotations.’” Id. (citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)). 

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

How Pennsylvania Defines “Should Have Known” in a Sexual Harassment Case

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In Philadelphia, an employer can only be held liable in a sexual harassment suit if they knew or should have known of the sexual harassment, according to the leading case Andrews v. Philadelphia. 895 F.2d 1469, 1468 (3d Cir. 1990). In Andrews, there were openly displayed pornographic pictures in the locker rooms and obscenities were so regular that the court held upper management had to be aware of the situation. Id.

Further, the Eastern District of Pennsylvania held that an employer may be charged with constructive notice of a supervisor’s harassment if the supervisor is vested with unbridled authority to retaliate against an employee or if the harassment was so pervasive and severe or so long lasting that a reasonable employer should have become aware of it.” Id. at *19. If the employer has power over the employee, like scheduling hours or promoting or firing the employee, they are more likely to be held liable because it puts the employee in a position where they have a hard time saying no to sexual advances. Fields v. Horizon House, Inc., the court also discussed should have known as well. Civ. A. No. 86-4343, 1987 U.S. Dist. LEXIS 11315 (E.D. Pa. Dec. 9, 1987).

If instances of sexual harassment occur in front of management, they cannot claim lack of knowledge. However, the most obvious way to alert management about harassment and protect the victim is by filing a report or telling a supervisor in writing.

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

Philadelphia’s New Wage Equity Law

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New Law Prohibiting Interview Questions About Salary History Faces Challenges

Upon the City Council’s unanimous passing of the Wage Equity Law in April 2017, Philadelphia became the first city in the United States to make it unlawful for employers to ask job applicants about their salary history as a condition of employment, or to retaliate against a prospective employee for refusing to answer questions about previous salaries. (Massachusetts and New York City also passed similar bills that have not yet been implemented). Under the new statute, job applicants who suspect a violation may file a complaint with the city Commission on Human Relations within 300 days. Those employers found to be in violation of the law by the CHR could be fined $2,000 and ordered to pay other damages, including legal fees.

The controversial new statute has already prompted litigation. Supporters of the law, including Mayor Jim Kenney, claim that it will help close the gender pay gap by preventing the carrying-over of past pay discrimination to new positions. Opponents, including business groups and companies like Comcast, argue that the regulation is harmful to business and that there is no evidence to support its proposed effects of a reduction in the pay gap.

The Greater Philadelphia Chamber of Commerce contends that the law violates employers’ free speech rights and places improper, unnecessary restrictions on interstate commerce. The Chamber moved for a preliminary injunction to temporarily block the law from being implemented in April, but U.S. District Judge Mitchell Goldberg dismissed the case for lack of standing. The Chamber filed again in June, this time identifying several specific members whose rights it claims would be violated by the law, including Comcast, Drexel University, Day & Zimmermann, and a children’s hospital, among others. The implementation of the law, which was supposed to go into effect May 23rd, is now on hold; its status resting on whether Judge Goldberg decides to temporarily block the law. Whether the Wage Equity Law survives court scrutiny and on what grounds is yet to be seen.

See Chamber of Commerce of Greater Philadelphia v. City of Philadelphia, U.S. District Court for the Eastern District of Pennsylvania, No. 17-cv-1548.

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

Hostile Work Environment and Religious Discrimination

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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.

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.

Supreme Court of Pennsylvania Defines “Employer”

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Under the Pennsylvania Human Relations Act, Employer is Defined as the Owner of a Company that Employs Four or More Employees

The Pennsylvania Humans Relations Act (PHRA) is a state statute that is for the protection of employees against employment discrimination. To bring a law suit against an employer for wrongful termination because of sexual harassment under the PHRA, the person must be an “employer” as defined by the act. According to the PHRA, to be considered an “employer” punishable under the act, there must be four or more employees that the person employs. Reversely, if a work environment has three or less employees the owner of the company is not liable under the PHRA for a wrongful termination suit because of Sexual Harassment.

In the case Weaver v. Harpster, 601 Pa. 488 (S. Ct. Pa. 2009), the Supreme Court of Pennsylvania confirmed that an environment of three employees does not qualify the owner of the company as an “employer”. Id. at 506. The woman in Weaver wanted to sue her employer because according to her compliant the “[e]mployer invited Employee to engage in a sexual relationship and committed various inappropriate sexual and physical contacts, such as rubbing, touching and hugging her, making inappropriate comments about her appearance, attire, and sexual proclivities, and closely following her around the office and to the bathroom.”  Id. at 492. However, because the work environment was so small (never more than three people at a time), she was barred from asserting her claim under the Pennsylvania Humans Relations Act, for being discriminated based on sex. The court did insinuate that there could be other remedies for the plaintiff such as bringing tort claims against the defendant for his actions.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Victims of Sexual Harassment by their Employer

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

Philadelphia Wage Dispute Lawyer: PNC Settles Class-Action Lawsuit

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PNC Bank recently agreed to pay $16 million to settle a federal class-action lawsuit filed by employees who claimed that the company discouraged them from reporting overtime and failed to pay them fairly for acquired overtime hours. The case involved 3,431 employees and mortgage loan officers employed by PNC since 2011.

Four loan officers originally filed the lawsuit in August 2015, citing a breach of the Fair Labor Standards Act (FLSA). The FLSA in part establishes overtime pay eligibility for full and part-time workers in the private sector and in local, state, and federal governments. The FLSA states that eligible employees are entitled to one and a half times the employee’s rate for each hour worked in excess of 40 per week.

One of the most common overtime violations is the incorrect classification of a worker as “exempt” or non-exempt from overtime compensation. Under the FLSA, exempt employees may include those who earn more than $23,600 per year and perform executive duties in the course of the job. Exempt employees might include those who: supervise two or more employees; perform primarily as managers; or those involved in decisions regarding other employees such as hiring, firing, and promotion. A skilled wage dispute lawyer may help you determine your eligibility for overtime pay and if you have a valid overtime dispute with your employer.

Philadelphia Wage Dispute Lawyers at Sidkoff, Pincus & Green Advise Clients in Unpaid Overtime Disputes

You may not be aware that unpaid overtime can be collected up to two years after the date that it was earned. In some cases, you may have an additional year to pursue unpaid overtime. If you are unsure about your eligibility or believe you have a valid overtime claim, contact a Philadelphia wage dispute lawyer at Sidkoff, Pincus & Green at our Center City Philadelphia offices at 215-574-0600 or contact us online.

Philadelphia Whistleblower Lawyers: False Claims Act Violation

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A former employee of MedStar Health Inc. has filed a whistleblower lawsuit against her employer under the False Claims Act. Court documents allege the company engaged in fraudulent activity together with a vendor, Accretive Health Inc., to boost Medicare inpatient claims at hospitals.

Claims of Medicare Fraud

Medicare pays more to hospitals for patients who are admitted for inpatient care than it does for patients who are on observation status. The plaintiff claims that while working at MedStar Washington Hospital’s emergency department, she helped to submit false claims to Medicaid, Medicare and Tricare. She alleges that Accretive took patients who were on observation status and created written recommendations for them that justified admitting them as inpatients. The Accretive personnel making the recommendations did not have the qualifications or even the information required to do so. The suit alleges that MedStar staff were then pressured into accepting the recommendations.

The lawsuit alleges that Accretive went as far as to claim to hospital administrators at different hospitals around the country that they could provide a revenue lift from Medicare. The suit describes a system designed by Accretive to exploit the administrators’ need for revenue and diminish the authority of the hospitals’ own doctors by overriding them with the fraudulent recommendations.

The False Claims Act

The False Claims Act is a federal law that holds people and companies liable for defrauding the government. It is the government’s primary tool for litigation against fraud. The Act’s qui tam provision enables private citizens to bring suit on behalf of the government. This is commonly known as whistleblowing. Whistleblowers filing under the False Claims Act receive a portion of the money recovered – usually between 15 to 25 percent. Whistleblowers are also entitled to protection against retaliation because they exposed fraud.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Represent Whistleblowers in False Claims Act Cases

Qui tam cases are complex and require thorough knowledge of whistleblower law. The Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. can review your case if you believe that you have been retaliated against for whistleblowing. Call 215-574-0600 to schedule an appointment in our Philadelphia offices or contact us online. We serve clients throughout Pennsylvania and New Jersey.