Category: Uncategorized

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.

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.

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.

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.