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Pennsylvania Employment Law Blog

How employees can use federal law to pursue employment claims

When an employee pursues a race discrimination case, it may be done pursuant to Title VII or Section 1981. The two statutes have many similarities, and facts in a case can be pursued under both laws at the same time. However, Pennsylvania residents should understand that the Supreme Court has ruled that these are distinct and separate causes of action. Depending on the facts of a case, this may help or hurt a worker's claim.

While both laws bar intentional discrimination, Title VII also prohibits practices that could have a disparate outcome if it there is no intent to do so. Those who are pursing a race discrimination claim do not need to file an EEOC charge before filing a lawsuit under Section 1981. This may help those who have missed a deadline to file such a charge.

DOL reverts to pre-Obama era view of independent contractors

Pennsylvania workers who are unclear of their should note that the federal Department of Labor under the Trump administration has rescinded interpretations published during the Obama years. These statements of guidance were meant to steer legal rulings on whether a person was an independent contractor as opposed to an employee. With the department's withdrawal of these guidelines, courts may continue to apply traditional views to these type of cases.

The interpretations created during President Obama's second term sought to address cases of people classified incorrectly as independent contractors instead of actual employees. With the apparent return to traditional interpretations, courts might focus more on the level of control exerted by an employer to determine whether the worker was actually an independent entrepreneur.

One claim sufficient for sexual harassment lawsuit

Pennsylvania employers may want to take heed and follow the outcome of a May ruling on sexual harassment by the U.S. Court of Appeals for the 10th Circuit. These types of claims generally fall under two categories, quid pro quo and hostile working environment. The ruling makes it clear that allegations do not have to specify the category in order for that category to be investigated by the EEOC. The specifics of the case may shed light on the broader meaning of the ruling.

The plaintiff in the case filed a two-page sexual harassment claim with the EEOC. Half of the document, the part describing the quid pro quo allegation, was lost, but the plaintiff was given leave to bring a lawsuit. The trial court used the half-missing document to reason that the plaintiff had not made sufficient effort to remedy his quid pro quo claim via the administrative process.

Few women report sexual harassment, EEOC says

According to the Equal Employment Opportunity Commission, a third of female workers in Pennsylvania and throughout the U.S. experienced sexual harassment on the job in 2016. Furthermore, 75 percent of women said they did not talk to a manager or union representative about the harassment. Professional retaliation, not being believed or being blamed for the incident were all reasons they cited for not reporting the harassment. Gender equality is an issue as well, and women report being paid and promoted less than men.

Senior leadership can create a culture that reduces the likelihood of sexual harassment and discrimination. One solution for companies is to state outright that neither will be tolerated. That must be backed up by action that addresses reports quickly and may include termination for employees who sexually harasses others. This means holding people accountable as well as looking at how many women are recruited into the company and whether they stay.

Judge makes landmark transgender discrimination ruling

A federal judge in Pennsylvania made a ruling in a workplace discrimination case on May 18 that is being hailed as a landmark decision by gay rights advocacy groups and prominent figures in the LGBT community. The judge ruled that gender dysmorphia is a covered condition under the Americans with Disabilities act even though gender identity is not. The director of the Transgender Rights Project referred to the ruling as a huge step forward for the transgender community.

The case the judge heard involved a transgender woman who claims that she was discriminated against and then fired by a Berks County retailer after her coworkers made untrue accusations about her. She also says that she was required to use the men's bathroom and wear an identity badge featuring her birth name. This type of discrimination is known in the transgender community as deadnaming.

Physician moms and Pennsylvania workplace discrimination

According to a survey conducted by researchers at the University of California, San Francisco, close to 80 percent of physicians who are also mothers are victims of workplace discrimination. Nearly 6,000 women responded to the survey, which posed questions about the respondents' physical, mental and reproductive health as well as questions about their experiences with discrimination or burnout at their places of work.

Thirty-five percent of the women stated that they experienced maternal discrimination, such as discrimination because they had to breast-feed, take maternity leave or do any other task related to being a mother. Sixty-six percent of the respondents stated that they had been victims of some form of gender discrimination.

Employers could be responsible for supervisor discrimination

Pennsylvania employers might be liable if a supervisor takes an action that discriminates against an employee. A U.S Court of Appeals for the 6th Circuit split panel reversed a decision by a lower court in a case that involved a woman being fired after returning from leave she took under the Family and Medical Leave Act. The woman argued that two supervisors showed bias against her for taking the leave. However, a district court has dismissed the woman's claims.

The 6th Circuit panel argued that the employer was liable under a principle known as "cat's paw". This is based on an opinion in a 1990 case that found an employer could be liable if a low-level supervisor discriminated against an employee. Arguing that the higher-level supervisors who made the final decision did so in good faith is not sufficient defense based on the cat's paw principle. The employer needs to be able to demonstrate that an independent investigation was carried out to verify the claims of a lower-level supervisor before an employee can be disciplined or fired.

Agricultural workers claim severe sexual harassment

Pennsylvania workers might wonder what kinds of actions constitute illegal sexual harassment by Title VII of the Civil Rights Act. A court takes a number of elements into consideration when it decides if harassment has taken place. Among these are the frequency and severity of the actions, whether the harassment interferes with an employee's performance, and if the act is humiliating or physically threatening.

On April 26, a complaint was filed against an agricultural company in Washington that allegedly allowed severe sexual harassment against female employees. The harassment allegedly included demanding that women who wish to remain employees engage in a sexual relationship with the supervisor. This is also known as "quid pro quo" harassment; although, it can also take less extreme forms, such as an executive who is more likely to give promotions to a worker who is willing to have dinner with them. Other claims in the lawsuit were that women were segregated to do a certain type of work and that they were subject to inappropriate touching and requests.

How the ADA protects people with cancer in the workplace

Some Pennsylvania employees who have had cancer might still be facing discrimination in the workplace according to a study that appeared in the "Journal of Oncology Practice." While a 2009 amendment to the 1990 Americans with Disabilities Act was designed to protect employees with well-managed disabilities or those in remission who still also faced substantial limitations, the study found this was not always the case.

The study looked at 2,500 employees who filed claims from 2001 to 2011. It found that before and after the amendment, the categories of termination, reasonable accommodation and hiring did not show a significant change before and after the 2009 amendment. For allegations about terms of employment, including forced retirement and denial of promotion, there was an increase in claims filed. This was also true for workplace relations, including intimidation and harassment.

The "in loco parentis" relationship and FMLA leave

Some Pennsylvania employees might be eligible for leave under the Family and Medical Leave Act to care for people who are not legally or biologically their parent or child if the relationship has been like that of parent and child. "In loco parentis" refers to this type of relationship, and it may be required for an employer to establish whether this relationship exists before approving or denying leave.

For example, in one case, a court ruled that an employer had an obligation to inform an employee that he had a right to seek FMLA leave on the basis of an "in loco parentis" relationship and to ask for additional information about the relationship. The man had requested leave to care for his grandfather but had not specified the nature of their relationship, and his leave request was denied. However, the man's grandfather had raised him from the age of four to fourteen.