Category: Uncategorized

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.

Agreements to Arbitrate

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The Third Circuit recently decided a case in which the District Court had vacated an arbitration award after finding that the parties to the contract at issue had not agreed to arbitration. In Aliments Krispy Kernels, Inc. v. Nichols Farms, the plaintiff, Aliments had attempted to confirm an arbitration award related to the sale of pistachios. The contract dispute centered on a brokered deal between the buyer, Aliments, and the seller, Nichols.

Upon denial of Aliments’ credit application, Nichols requested payment before delivering the pistachios, instead of thirty days from delivery. Aliments claimed that advance payment is inconsistent with the parties’ previous practices and with industry standards and eventually bought pistachios from another vendor at a higher price. Aliments then initiated arbitration proceedings to recover the difference in cost and was awarded $222,100.

When Nichols refused to pay, Aliments brought the case before the District Court seeking enforcement of the arbitration award. The court found there was a lack of evidence as to an agreement or sales confirmation between the parties and agreed with Nichols that it did not agree to arbitrate, accordingly granting Nichols’ petition to vacate the award. Aliments appealed to the Third Circuit, which examined the legal standard applied by the District Court and whether the parties entered into an agreement to arbitrate as a matter of law.

The Third Circuit stated that its previous applications of the standard requiring an express and unequivocal agreement to arbitrate were confusing and outdated. Instead, the Third Circuit instructed that when determining if a party is compelled to submit to arbitration, the courts should decide whether there was a valid agreement between the parties to arbitrate by applying ordinary state law principles governing the formation of contracts.

The Third Circuit concluded that the District Court properly used the express and unequivocal standard in deciding whether to confirm the arbitration award only to the extent that there were no genuine issues of material fact regarding the formation of the contract. However, it disagreed with the lower court’s finding that there were no genuine issues of material fact; specifically, that there was no evidence that an agreement or sales confirmation was entered and that there was no evidence that Nichols intended to arbitrate.

The Third Circuit stated that there are remaining issues of fact such as – among several other issues – whether a binding contract was created before Nichols received Aliments’ credit application. Therefore, the case was vacated and remanded for further proceedings due to the Court’s finding that multiple issues of material fact are in existence.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green Represent Parties in Breach of Contract Disputes

At Sidkoff, Pincus & Green, our Philadelphia business lawyers handle even the most complicated breach of contract disputes. Call us at 215-574-0600 or contact us online today to arrange a confidential consultation in our Philadelphia offices.

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 FINRA Lawyers: Variable Annuity Fraud

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A Financial Industry Regulatory Authority (FINRA) panel has awarded damages to a woman over claims that her broker misled her about her investment. The investment was an ING Landmark variable annuity for which the petitioner alleged fraud, breach of contract, negligent supervision and breach of fiduciary duty, as well as violation of the Colorado Securities Act by her broker-dealer.. The respondent, broker-dealer, based in Oklahoma City, has been ordered to pay the woman over $1 million in damages.

The petitioner alleged she had been promised seven percent compounded annual returns on her investment. The case was unusual because of the clear paper trail and a written guarantee from the broker. A Salt Lake City arbitration panel awarded the petitioner $537,000 in compensatory damages, an amount equal to the difference of what she had been promised and what she received. The FINRA panel also awarded $537,000 in punitive damages. The panel attributed the punitive award to the “pattern of harming a group of people,” demonstrated by the broker-dealer firm which had as many as eight other clients with the same problem.

Annuity Complaints on the Rise

According to FINRA, client claims involving annuities rose 31 percent last year. They rank fifth among the securities involved in claims against FINRA member firms. This surge in client claims is getting the attention of the federal government, which has considered placing conditions on the sale of annuities, citing conflicts of interest and high fees. The advocacy group Consumer Action says that seniors are particularly at risk for fraud and make up 30 percent of victims.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green P.C. Advocate for Victims of Fraud and other Wrongful Acts

If you have suffered a financial loss due to fraudulent financial advice, you may be entitled to compensation. At Sidkoff, Pincus & Green P.C. our Philadelphia FINRA lawyers have extensive experience handling many types of legal disputes, including FINRA arbitration. Call us at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Trade Secrets Lawsuit

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An architecture and construction company, Tesla Wall Systems LLC, has been awarded $14.5 million in damages in a claim against its former president. Among other things, the claim alleged breach of contract based on the trade secret/restrictive covenant clause in the employment contract. The contract contained post-employment restrictions barring the ex-president from interference with company business relationships for six months, and from soliciting employees for nine months.

Tesla Wall alleged that the breach of confidentiality began as early as September 2012 when the defendant bought three laptops. The company maintained that he did not ask to be reimbursed for his purchase because he was using them to steal trade secrets. In the complaint, Tesla employees said that after his departure, the defendant continued to pursue Tesla projects and customers with his new company. The list of proprietary information that he allegedly took with him included everything from software and technology, to technical data and research, engineering designs, internal bids and proposals, as well as customer lists and internal pricing information.

Many claims involving restrictive covenants never make it to trial as the parties often opt for a settlement.  However in this case, the employer decided to pursue the claim to its conclusion. After sitting through more than ten days of trial, a federal jury in the Southern District of New York returned a verdict in favor of Tesla Wall LLC.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Breach of Contract Matters, Restrictive Covenant Actions and Trade Secret Claims

The Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. have experience in contract law, restrictive covenants and trade secrets. Please call us at 215-574-0600 or contact us online. Our offices are in Philadelphia and we serve clients nationwide.

Philadelphia Business Lawyers: Court Rules on Copyright

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Recently, the U.S. Supreme Court issued a watershed decision in Star Athletica v. Varsity Brands, holding that the decorative features on cheerleading uniforms are protected by federal copyright law. The issue before the court was what was the appropriate test to determine whether a feature of a useful article, such as an article of clothing, is protected under the 1976 Copyright Act’s Section 101. The Court set out to resolve a widespread disagreement as to what testing standard is most appropriate.

Justice Clarence Thomas authored the opinion. He wrote that an artistic feature of a uniform’s design can be copyrighted if it can be perceived as a two or three-dimensional work of art that stands separate from the uniform itself. The analysis applies equally to all “useful articles.” In addition, the feature must qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the uniform.

Varsity Brands manufactures cheerleading uniforms and athletic apparel. Varsity has more than 200 copyright registrations for two-dimensional designs consisting of various patterns, chevrons, and shapes. Designers create concepts that consist of original combinations, positionings, and arrangements of elements and do not consider functionality or the ease of actually producing uniforms. Varsity sued Star Athletica, who also markets cheerleading uniforms, after they allegedly copied two-dimensional art designs that Varsity had copyrighted. The Court held that the uniforms at issue met the requirements set forth by the newly devised test.

Justice Stephen G. Breyer dissented, finding that Star Athletica’s designs looked like generic pictures of cheerleader uniforms. He compared the situation to a pair of old shoes in a Van Gogh painting—stating that it would not qualify as a shoe design copyright, though the painting itself would be copyrightable.

Justice Ruth Bader Ginsburg concurred with the majority’s judgment, but not its opinion. She said that designs are not designs of useful articles, but rather are themselves copyrightable graphic works reproduced on useful articles. She found that the designs were standalone works of sculptural art that were covered by Section 101 of the 1976 Copyright Act.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Handle All Types of Trademark Litigation

If you are seeking representation in any type of business, copyright, or trademark matter, the Philadelphia trademark litigation lawyers at Sidkoff, Pincus & Green P.C. are available to answer your questions. To schedule a consultation with us, call us at 215-574-0600 or contact us online today.

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.