Labor & Employment Law Daily Pennsylvania’s anti-bias law didn’t preclude retaliation claim under state’s whistleblower law
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Monday, June 22, 2020

Pennsylvania’s anti-bias law didn’t preclude retaliation claim under state’s whistleblower law

By Marjorie Johnson, J.D.

The state’s high court held that plaintiffs who are not themselves the victims of discrimination prohibited by the state’s anti-bias law, but who report such discriminatory conduct, may pursue a claim under the state’s whistleblower law.

A quality manager who claimed she was fired in retaliation for reporting discriminatory conduct made unlawful by the Pennsylvania Human Relations Act (PHRA), but was not herself the subject of the underlying discrimination, was not barred from bringing a claim for wrongful discharge under the Pennsylvania Whistleblower Law. In a 6-1 decision, a divided Pennsylvania Supreme Court ruled that while it had previously ruled that the PHRA precludes common law claims of discriminatory wrongful discharge, the anti-bias law makes clear that a plaintiff isn’t required to invoke its regulatory scheme where other statutes, such as the Whistleblower law, provides a cognizable remedy based on the same alleged harm (Harrison v. Health Network Laboratories Limited Partnerships, June 16, 2020, Dougherty, K.).

Fired after reporting harassment of another. After the manager received a complaint from an employee about an IT supervisor’s harassing and discriminatory conduct, she reported the concerns to the chief operating officer without identifying the complainant or supervisor. Though she asked for the appointment of an ombudsman, her request was denied and no action was taken. The victim of the harassment then resigned and provided a letter to the manager which identified the harassing supervisor and described his conduct, which the manager elevated but still no corrective action was taken. Shortly thereafter the employee was terminated, ostensibly for using foul language at an after-hours banquet.

Trial court dismisses whistleblower claim. The employee filed this lawsuit asserting a claim of retaliation under Pennsylvania’s Whistleblower Law, which the trial court dismissed as barred by the PHRA. The court found that the PHRA was the exclusive state law remedy for unlawful workplace discrimination and contained its own specific provision prohibiting retaliation for opposing practices forbidden by the statute. Thus, because the employer’s alleged retaliation fell within the exclusive jurisdiction of the PHRA, she failed to state a claim upon which relief could be granted under the Whistleblower Law.

Appeals court reverses. In an unpublished opinion, the Pennsylvania superior court reversed, concluding that the employee was not required to invoke the PHRA’s administrative remedies in order to pursue a retaliation claim where the alleged violation of the PHRA was the underlying wrongdoing, rather than a discriminatory act perpetrated against the plaintiff. Because she sufficiently alleged a cognizable claim under the Whistleblower Law—she made a good faith report of wrongdoing by her employer—the trial court erred in dismissing her claim.

Discretionary review. The Pennsylvania Supreme Court agreed to review the sole issue of whether the PHRA provides the exclusive remedy for retaliation claims ostensibly brought under the Whistleblower Law, where the underlying basis for a Whistleblower Law retaliation claim is discrimination deemed to be unlawful under the PHRA.

Whistleblower Law. At issue was the Whistleblower Law’s prohibition against retaliation for good faith reports of wrongdoing by publicly-funded employers. The statute defines “wrongdoing” as “[a] violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation [inter alia].” In contrast, the PHRA’s prohibitions are more specific, targeted squarely on practices that discriminate on the basis of an individual’s status as a member of a protected class. The statute also prohibits retaliation for having “opposed any practice forbidden by this act” or for making a charge or assisting in the administrative process.

Prior caselaw explained. The Pennsylvania Supreme Court previously held in Clay v. Advanced Computer Applications, that the PHRA precludes common law claims for discriminatory wrongful discharge, recognizing the value of the PHRC’s particular expertise and broad remedial powers in handling discrimination cases. However, the Clay Court also discussed Subsection 962(b) of the PHRA, which expressly states “nothing contained in this act shall be deemed to repeal or supersede any of the provisions of … any law of this Commonwealth relating to discrimination because of [a protected characteristic].” The effect of this and other provisions in the PHRA was that an aggrieved party may elect to pursue a remedy that exists under other municipal laws or laws of the Commonwealth, and, by instituting such an alternative action, will then be precluded from resorting to the PHRA.

PHRA allows claims under other statutes. With this backdrop, the Pennsylvania Supreme Court rejected the employer’s contention that because the employee alleged retaliatory discharge for reporting conduct made unlawful by the PHRA, she was required to submit to the PHRA’s administrative procedures. Though there were obvious benefits to encouraging retaliation claims based on reports of conduct in violation of the PHRA to proceed under the PHRA’s intricate statutory scheme, “the plain language of the statute made clear that an aggrieved party was not required to invoke the PHRA’s procedures when other laws provided a cognizable remedy based on the harm alleged.” In this regard, the cases relied upon by the employer were distinguishable.

Accordingly, the employee asserted a cognizable claim under the Whistleblower Law alleging a violation of the PHRA since nothing in the PHRA made its provisions mandatory for the employee to pursue such a claim only under the anti-bias law. In fact, the subsequently enacted Whistleblower Law’s provision prohibiting retaliatory conduct for an employee’s participation in investigations, hearings, or inquiries held by “an appropriate authority” demonstrated that the state’s legislature anticipated some overlap with the administrative procedures for investigating and remedying violations of other statutes or regulations, such as those pronounced by the PHRA.

An employee alleging a Whistleblower Law violation is required to show “prior to the alleged reprisal, the employee or a person acting on behalf of the employee had reported or was about to report in good faith, verbally or in writing, an instance of wrongdoing or waste to the employer or an appropriate authority.” As the appeals court determined, the employee alleged such a showing. Thus, she established a prima facie case for retaliatory termination under the Whistleblower Law, upon which relief is possible.

Concurrence. Chief Justice Thomas Saylor wrote a concurring opinion, which Justice Mundy joined, setting forth a different statutory interpretation and concluding that the Clay decision should be limited to the proposition that PHRA preempts “pertinent common-law claims.” Justice Wecht also penned a separate concurring opinion further delving into PHRA’s statutory scheme.

Dissent. Dissenting, Justice Donohue opined that by its express terms, the PHRA was the exclusive state law remedy for a claim based on retaliatory discharge for opposing discrimination in the workplace.

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