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Although sex discrimination claims are often met with explanations that the alleged offender didn’t realize what they said or did was offensive, or that the recipient misinterpreted the words or actions of the alleged offender, these types of dismissive explanations are becoming more carefully scrutinized the world of workplace discrimination lawsuits. In dicta, the United States District Court for the Middle District of Pennsylvania found that an employer’s “subtle” discriminatory comments could support an inference of discrimination based on a plaintiff’s protected class. The “subtle” comments presented to the court as part of a recent lawsuit included: reference to a woman’s “new husband” being able to support her if she was fired; commenting on the distance the woman lived from her job while not knowing if this factor would matter with respect to a male employee; and commenting on a woman’s ability to be single and raise four children, again, while admitting to not knowing if this factor would matter with respect to a male employee. See Rosencrans v. Quixote Enterprises, Inc., et al., Case No. 17-CV-00055 (M.D. Pa. January 19, 2018) (J. Conaboy).

            Despite the court’s dicta with respect to these types of harmful remarks, the plaintiff nonetheless failed to support her discrimination claims because these statements were made by the company owner – who was not involved in the decision to terminate the plaintiff’s employment. Rather, the decision to terminate the plaintiff’s employment was made by two of the plaintiff’s supervisors who did not seek or need the approval of the company owner to make firing decisions. This finding highlights the other critical takeaway from this case – it is important to define who the decision-makers are and to define what exactly each of those decision-makers knew, didn’t know, said, or didn’t say. Even though the plaintiff in this instance failed to prove her claims, the importance of the court’s language with respect to “subtle” discriminatory comments is not lessened.

            For those interested in more of the factual and legal underpinnings of the case, the defendant company terminated the plaintiff’s employment based on her lateness, playing on her personal computer during work hours, and general poor attitude. The plaintiff brought a Title VII discrimination suit against the defendant company claiming that she was held to a different standard than male employees and that she was fired because she got married. This type of legal theory is known as a “sex-plus” theory – which is a claim of sex discrimination premised on an additional factor such as marital status. To prove a “sex-plus” claim of sex discrimination, a female employee usually must demonstrate that she was treated less favorably than a married male employee. Absent this type of evidence – which was absent in the Rosencrans case – a plaintiff must raise an inference of sex discrimination by presenting evidence such as “subtle” discriminatory comments or impermissible sexual stereotyping. The plaintiff was indeed able to prove the existence of these types of factors, however, as noted above, the bad behavior was not attributable to the decision-makers nor did the decision-makers know about it.

            Rosencrans is a decision that will be kept on our watch-list. If you have any questions please consult your Fisher Phillips attorney with any questions.

Late last year, Pennsylvania legislators introduced House Bill 1938, the “Freedom to Work Act” (the “Act”), an outright ban on “covenant[s] not to compete” in Pennsylvania. Under the Act, “a covenant not to compete is illegal, unenforceable and void as matter of law.”

On December 11, 2017, the NLRB ruled that an ALJ in Pittsburgh properly accepted a partial settlement offered by University of Pittsburgh Medical Center (UPMC) despite objections from the agency’s general counsel and the charging party. The decision swiftly reverses Obama-era policy and restores the “reasonableness” settlement standard.

Employers commonly find themselves answering the following question: What right does a former employee have to access his or her personnel file? Often, after an employer terminates an employee, that employee and/or the employee’s attorney demands access to the employee’s personnel file. Up until a recent decision out of the Supreme Court of Pennsylvania on this issue, employers found themselves in a precarious position of whether they granted the former employee’s request. The Thomas Jefferson University Hospitals, Inc. v. Pennsylvania Department of Labor and Industry case now equips employers with the clear right to say no to the former employee’s request. 162 A.3d 384 (Pa. 2017).

With the recent buzz about President Donald Trump’s removal of federal protections for transgender students that were implemented under the Obama Administration, the states and school systems have been left to determine if and how to implement protections for transgender students.

The City of Philadelphia will now have the authority to shut down a business within the city for an undefined “period of time” if the business severely or repeatedly violates Philadelphia’s anti-discrimination laws, under a bill signed by Mayor Kinney on June 22, 2017.

There have been many recent, important developments in the area of paid sick leave in Pennsylvania. Recently, the Commonwealth Court of Pennsylvania (the “Appeals Court”) affirmed the Court of Common Pleas of Allegheny County’s (the “Trial Court”) ruling invalidating the Pittsburgh Paid Sick Days Act (“PSDA”).

It is only fitting that, on this day, May the 4th, which has become known colloquially as Star Wars Day, we bring you this update on Philadelphia’s Wage Equity Ordinance saga which could send significant ripples throughout the galaxy.

The Pennsylvania General Assembly passed a law (Act 161) in November that amends the Pennsylvania Banking Code to permit the use of payroll debit cards, with certain conditions. Employers who wish to consider the payroll debit card option for paying employees (or who already are doing so) should review the specifics of the law to ensure they are in compliance when this law takes effect on May 4, 2017

On January 23, 2017, a noteworthy and interesting bill was introduced in the Pennsylvania General Assembly. House Bill 38, which was introduced and sponsored by fifteen (15) State Representatives, is aimed at expanding the scope of the Pennsylvania Human Relations Act (“PHRA”) to preclude and protect individuals from workplace discrimination stemming from the lawful ownership, use, possession, transportation and storage of a firearm. In substances, the PHRA is a Pennsylvania state law that bars workplace discrimination based on various protected classifications such as race, color, gender, national origin, age and a physical or mental disability. Under the PHRA, an individual who has been subject to workplace discrimination due to one of the enumerated protected classification has the right to file a lawsuit against his or her current or former employer seeking to recover various damages including back wages, emotional distress and attorneys’ fees. Like employers in many states, Pennsylvania employers, regardless of merit, have seen an ever increasing number of employment discrimination lawsuit filed by current and former employees.

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