Category: Uncategorized

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.

Court Allows CNA Overtime Case to Proceed

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The Third Circuit has affirmed the denial of a motion to dismiss or stay a lawsuit, whereby a group of certified nursing assistants (CNAs) in New Jersey allege violations of their rights under the Fair Labor Standards Act (FLSA). The CNAs, who were employed at the same skilled nursing facility, claim that they were unlawfully denied overtime pay and meal breaks. The case is now poised to proceed to trial.

The case was initially filed in 2013, when three CNAs employed at Alaris Health in Cherry Hill, New Jersey alleged that their employer’s parent company failed to pay them overtime pay, and that they were only rarely permitted to take meal breaks because the facility was so understaffed. The plaintiffs further claim that half-hour meal breaks were automatically deducted from their total hours worked, even if they were not permitted to take a break, or were interrupted during mealtimes to return to work. Their complaint also alleges that they were not being paid for overtime during weeks in which they worked more than 40 hours. The plaintiffs made these claims on behalf of themselves, as well as the entire class of CNAs employed at Alaris between 2010 and 2013.

The defendant parent company, Silver Care, asserts that the CNAs’ union negotiated a collective bargaining agreement (CBA) that requires these types of disputes to be resolved by an arbitrator. When the plaintiffs elected to file their case in federal court, Silver Care moved to dismiss.

The District Court disagreed with the defendant, finding that although interpretation of the terms of the CBA is a factual dispute, the plaintiff’s claims regarding FLSA violations did not depend on disputed interpretations of CBA provisions such that arbitration is necessary. The Third Circuit recently affirmed, also finding that the dispute did not need to be resolved through arbitration.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Overtime Disputes

If you suspect that you have been wrongfully denied overtime pay, you may have a valid claim. Schedule a consultation with a Philadelphia overtime dispute lawyer at Sidkoff, Pincus & Green P.C. by calling 215-574-0600 to discuss your legal options or contact us online today.

House Bill Permits Employers To Offer Paid Time Off In Lieu of Overtime Compensation

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The Working Families Flexibility Act of 2017 (H.R. 1180) was passed by the U.S. House of Representatives in May, and will soon go before the U.S. Senate. If passed, the bill will amend the existing Fair Labor Standards Act in a manner that many employees will not favor. Under the FLSA, employers are required to pay time-and-a-half to employees who work over 40 hours a week. The new legislation would allow employers to offer comp time in lieu of time-and-a-half pay to non-exempt workers who work more than 40 hours in a week.

Opponents of H.R. 1180 note that its flexibility is limited. Under the rule, employees must give reasonable notice to employers, and the workplace must not be unduly disrupted with time-off requests. Such language leaves open the possibility for employers to deny requests for time off when employees need it most, for example if an unforeseeable family emergency arises.

Critics also argue that despite built-in protections against coercion, the bill may not protect employees against preferential treatment. When employers create work schedules, they may decide to give overtime hours to those who choose compensatory time off, putting those who are dependent upon overtime pay at a disadvantage.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. represent employees in Wage and Overtime Dispute Cases

If you are involved in a wage and overtime dispute, the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. can help you obtain the compensation you are owed from your employer. To schedule a consultation in our Philadelphia offices, call us at 215-574-0600 or contact us online today.

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.

Court Ruling on Hague Service by Mail

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The United States Supreme Court recently issued a ruling on what constitutes effective service under the Hague Service Convention, resolving a long-standing circuit split. The case was brought before the Court after a U.S. employer tried suing a former employee after she moved out of the country. In the ruling, the Court determined that the Hague Service Convention does not prohibit service of process by mail.

A Texas-based company Water Splash, Inc. filed a lawsuit against one of its former employees, alleging unfair competition, tortious interference, and conversion. The employee, a resident of Quebec, Canada, had begun working for a competitor of Water Splash before leaving the company. Water Splash served the employee via mail, and when she failed to appear, a default judgment was entered against her. She appealed the default judgment on grounds that service by mail is not valid under the Hague Service Convention. The Appellate Court agreed, and she prevailed before the case made its way to the Supreme Court.

Pursuant to the Hague Service Convention, every country must designate a central authority where requests for service of process are to be sent. When a request is received, the designee must arrange for service and provide a certification of service to the requester.

The Supreme Court, resolving a long-standing federal district and circuit split, found that this rule does not serve to render other means of service ineffective. Two states can agree that other methods of service will also be acceptable. In rendering its decision, the Court analyzed the contextual background of the provision at issue, and also looked beyond the four corners of the Hague Service Convention—taking the drafting history, and views of the other signatories into consideration.

Some of these other sources stated that Article 10 permits service by direct mail, provided the receiving state does not object. Moreover, multiple foreign courts have held that service by mail is appropriate and effective.

After a holistic review, the Court determined that the underlying purpose of the Convention was to ensure that documents served abroad are brought to notice of the addressee in a reasonable period of time. The Court ultimately remanded the case, so that the Texas courts could determine whether Texas law authorizes service by mail.

Some view this decision as a setback, as the holding effectively rubber stamps service of process on foreign corporations by mail. However, the decision may not be as sweeping as it appears. The Supreme Court declined to address the issue as to whether the mailed documents must be translated into the intended recipient’s national language. The Hague Service Convention requires such a translation when service is affected through the centralized designated authority. It is unclear whether that holds true when service is affected via mail.

The issue of translation will also be decided by the Texas courts on remand. Service without the appropriate translation may still be a valid argument against proper service, even if the mail was received, read, and understood.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Business Disputes

Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. represent clients in all types of business litigation, including litigation against foreign corporations. To learn more about how we can help you, call us today at 215-574-0600 or contact us online.