The Pennsylvania Supreme Court has recently revised state employment law standards for whistleblowers. The case, Harrison v. Health Network Laboratories, arose when plaintiff Karen Harrison experienced retaliation after objecting to discriminatory conduct against a third party employee.
The PA Supreme Court had to consider whether an employee is permitted to sue an employer for firing her in retaliation for reporting unlawfully discriminatory conduct that she herself did not experience in light of the Pennsylvania Human Relations Act (PHRA).
Harrison was an administrator at Health Network Laboratories for nearly 20 years, and in 2015, she received a complaint from another employee “expressing concerns about allegedly abusive, discriminatory, and harassing conduct by an IT department supervisor, which was known to and went unchecked by the supervisor’s immediate superior.” Harrison reported the conduct to the Chief Operating Office/Chief Compliance Officer, but no action was ever taken.
About seven months later, the complaining employee resigned with a letter recounting the alleged discriminatory conduct. The complainant shared the letter with Harrison and other employees, and Harrison in turn shared the letter with her chain of command. Again, there was no corrective action taken with respect to the IT supervisor that was still employed. A month after that, Health Network terminated Harrison’s position, stating that she used foul language at an after-hours banquet.
Plaintiffs who are alleging that they have suffered an adverse employment action such as termination in response to reporting discriminatory conduct may be countered when an employer offers an alternative reason for the firing. In other words, the employer may argue that they did not fire the employee in retaliation for reporting the conduct, but for some other reason. In this case, that reason would have been for Harrison’s use of foul language. In such cases, the plaintiff may then argue that this alternative reason is “pretextual,” and the real reason for dismissal is retaliatory.
Harrison argued that the use of foul language at an after-hours banquet was pretextual and this allegation is supported by her exemplary personnel record with the company. She filed her complaint against the company under Pennsylvania’s Whistleblower Law. This law protects employees “who are discharged or otherwise retaliated against for making a good faith report of … wrongdoing by a publicly-funded employer.” Health Network, however, argued that the PHRA is the only state law that can provide a remedy for unlawful workplace discrimination.
The trial court agreed with Health Network, holding that Harrison had to file her complaint with the Pennsylvania Human Rights Commission and exhaust all of her administrative remedies before she could seek a remedy under the PHRA in court. It stated that using the Whistleblower Law instead “thwart[ed] the intent of the PHRA because it would permit Harrison to skip the mandatory PHRC investigation into her retaliation claim, and would deny Health Network the opportunity to reach a conciliation agreement before the PHRC.” Harrison appealed this holding to the Superior Court, which ruled in her favor. Health Network, in turn, appealed again to the Pennsylvania Supreme Court, which upheld the Superior Court’s decision.
The Supreme Court held that Harrison did not have to pursue her claim under the PHRA first because the alleged violation of the PHRA was the underlying wrongdoing, not a discriminatory act that was perpetuated against Harrison. The discriminatory act was against a third party, and instead, the wrongdoing was firing Harrison in retaliation for a good faith reporting of discriminatory and abusive conduct. The Supreme Court thus held that “an aggrieved party is not mandated to invoke the PHRA’s procedures when other laws provide a cognizable remedy based on the harm alleged.”
Harrison brought a cognizable claim under the Whistleblower Law, and thus, the Pennsylvania Supreme Court held that even plaintiffs who are not themselves the victims of discrimination based on their status as a member of a protected class can bring a claim under the Whistleblower Law when they have reported discriminatory conduct made unlawful by the PHRA, regardless of the viability of that claim under the PHRA.
With this case, the PA Supreme Court has provided another avenue for employees to file retaliation claims. It held that Whistleblower claims, or others providing remedies, are pursuable by individuals who suffer retaliation for objecting to discrimination against a third party. It should also be noted, however, that the Whistleblower Law only applies to groups that receive public money.
Three of the seven judges to hear this case also held that they would have taken the holding further by permitting anyone to go directly to court if they could make the claim under any law making discrimination illegal, thereby expanding the permissibility beyond the Whistleblower Law. While the current standard was only expanded to organizations with public money who have retaliated against someone objecting to discriminatory conduct, the three judges stating their willingness to take the holding further signals that changes to the standard may not be far off.
With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.