Discriminatory Firing

 

What is discriminatory firing?

 

Discriminatory firing (a type of wrongful termination or wrongful discharge) is the unlawful termination of an employee by an employer on the basis of a legally protected characteristic such as race, sex, or national origin.

An instance of discriminatory firing may take place concurrently with other types of discrimination. For example, if you are an expectant mother, you may be discriminated against and fired as a result of your pregnancy.1 (See “Pregnancy Discrimination” for more information.) You may also experience what is known as constructive termination. A constructive termination might occur, for example, in instances of sexual harassment that make the work environment so hostile that an employee is unable to continue her job.2

 

What are Pennsylvania’s laws regarding discriminatory firing?

 

The Pennsylvania Human Relations Act (PHRA) forbids employers from firing an employee on the basis of sex. This Act makes it unlawful “to bar or to discharge from employment” an employee on the basis of sex, “if the individual or independent contractor is the best able and most competent to perform the services required.”3

 

Who does the PHRA cover?

 

The PHRA covers employers who have four or more employees, including government agencies, charities, and religious organizations.4 It does not cover agricultural or domestic workers, workers who live in the personal residence of their employer as part of their job, or individuals employed by family members.5 All other employees are covered.

 

How do I bring a claim in Pennsylvania?

 

The Pennsylvania courts have repeatedly held that there are no separate common law remedies for sex discrimination, including wrongful termination and sexual harassment, because the PHRA preempts all other claims based on discrimination.6 You cannot go directly to court under the PHRA, rather you must first file a complaint with the PHRC.7
See How to File a Claim with PHRC.

 

How long do I have to bring a claim?

 

You have 180 days to bring a claim under the PHRA.8

 

What are the federal laws regarding discriminatory firing?

 

Title VII of the Civil Rights Act of 1964 (Title VII) makes termination on the basis of sex illegal under federal law.9 The language contained in this section resembles the state law above, but does not contain the requirement that the employee be the “best able and most competent” person for the job.

Several other federal laws cover different types of discriminatory firing. These include the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Job Training Partnership Act. Most women, however, will likely be concerned only with Title VII.

 

Am I covered by Title VII?

 

Title VII generally covers employers who employ fifteen or more people, but there are some limited exceptions.10 Although most federal employers are covered, employees of the Library of Congress, the General Accounting Office, and uniformed members of the military are not protected by Title VII.11 Other exemptions include: private membership clubs which have received tax exempt status,12 Indian tribes,13 and public international organizations such as the International Monetary Fund and the World Bank.14

 

How do I bring a claim under Title VII?

 

In order to bring a claim under Title VII, you have to go through the Equal Employment Opportunity Commission (EEOC). You cannot bring a case to court without first doing so.
See The EEOC Process for more information.

 

How long do I have to file my claim under Title VII?

 

Federal employees must file a claim with the agency committing the discrimination within 45 days.15 Because the PHRC is Pennsylvania’s Fair Employment Practices Agency, private employees have 300 days after the alleged discriminatory practice to file a complaint.16
See The EEOC Process for more information.

 

How do I prove discriminatory firing?

 

To prove that discriminatory firing has occurred, you must meet a four-factor test similar to the test established in the precedent-setting case of McDonnell Douglas Corp. v. Green. You must show:

  1. You are a member of a protected class (i.e., a woman);
  2. That you were qualified for your job and were completing it satisfactorily;
  3. That you were fired despite your adequate work; and
  4. That your employer sought someone of similar qualifications to replace you. (For a concrete example of how this test has been applied in Pennsylvania, please see “It Happened to Me” below.)

 

What remedies am I entitled to under Title VII?

 

If the court finds that your employer has violated Title VII, there are several available remedies. The court has the freedom to demand that your employer take appropriate action, such as ceasing the discriminatory practice, hiring or promoting you, or paying you lost wages as far back as two years prior to your complaint with the EEOC.18

However, if your employer can show that there was a non-discriminatory reason for its action as well as the discriminatory reason you proved, and that it would have taken the same action anyway, your remedies will be severely limited. The court is limited to telling your employer to stop the discriminatory practices, declaring that the practices are discriminatory, and paying attorney fees. 19

On the other hand, if you can show that your employer discriminated maliciously or recklessly, then the court may award extra payments beyond lost wages.20 These payments are limited by the size of your employer.21

 

Discriminatory Firing: “It Happened to Me” 22

 

During the early 1980s, Mary Healy (Mary) was employed as real estate agent with a Pennsylvania company called the National American Corporation (NACO). Mary filed a complaint with the PHRC alleging that NACO had failed to promote her and fired her because she was a woman. In her complaint, Mary showed she had a case for sex-based discrimination. She demonstrated that she had been an excellent employee. For example, she had won several awards and had been selected to train new employees on how to close a real estate deal. Even though Mary had done a great job, several male employees who had not performed as well and were less experienced than her were not fired – in fact some had been promoted!

Since Mary established these facts in her complaint, the PHRC determined there was probable cause to investigate further. The PHRC then notified NACO about Mary’s complaint. NACO attempted to come to a resolution with Mary, but the talks were unsuccessful, and a PHRC hearing followed. Because Mary had listed many facts supporting her case for sex-based discrimination, it was then NACO’s responsibility to prove that it had fired Mary for a legitimate reason other than discrimination.

NACO was able to list non-discriminatory reasons for firing Mary, namely that the company had a very strict lateness and absence policy, and Mary had been late or absent too many times. However, Mary showed that the only reason she had been late or absent was because she had been sick. Despite having a doctor’s note, NACO would not excuse Mary’s absences and was unforgiving in granting her sick leave. NACO had never warned Mary that she was in danger of losing her job. Furthermore, only one employee had ever been fired for a reason other than having a poor sales record, and Mary’s record was excellent. Given these facts, the PHRC looked at NACOs attitude toward Mary’s illness and reasoned that NACO had only been using her lateness and absences as an excuse to fire her because she was a woman. The PHRC found in favor of Mary. Mary was awarded over $125,000 in lost wages!

 

 

1 Pennsylvania Human Relations Commission, http://sites.state.pa.us/PA_Exec/PHRC/legal/finalorders/E13832.pdf (last visited Mar. 1, 2010).
2 Lindemann, supra note 144, at 1436.
3 43 Pa. Cons. Stat. Ann. § 955(a) (West 2009).
4 Id. at § 954(b).
5 Id. at § 954(c).
6 Brennan v. Nat’l Telephone Directory Corp., 850 F. Supp. 331, 345 (E.D. Pa. 1994); Clay v, Advanced Computer Applicatons, Inc., 559 A.2d 917 (Pa. 1989).
7 43 Pa. Cons. Stat. Ann. § 962(b) (West 2010).
8 Id. at § 959(h).
9 42 U.S.C. § 2000e-2(a)(1) (2000).
10 42 U.S.C.A. § 2000e(b) (West 2009).
11 29 C.F.R. § 1614.103 (West 2009).
12 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-ii (last visited Mar. 1, 2010).
13 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-i (last visited Mar. 1, 2010).
14 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-iii (last visited Mar. 1, 2010).
15 29 C.F.R. § 1614.105(a)(1) (West 2010).
16 EEOC Compliance Manual “Threshold Issues”. http://www.eeoc.gov/policy/docs/threshold.html#2-IV-A (last visited Feb 26, 2010).
17 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
18 42 U.S.C.A. § 2000e-5(g)(1) (West 2009).
19 Id. at § 2000e-5(g)(2)(B)(i)-(ii).
20 Id. at § 1981a-(b)(1).
21 Id. at § 1981a-(b)(3).
22 Pennsylvania Human Relations Commission, http://sites.state.pa.us/PA_Exec/PHRC/legal/finalorders/E26581.pdf (last visited Feb. 26, 2010).