Under Title VII of the Civil Rights Act (“Title VII”) and the Pennsylvania Human Relations Act (“PHRA”), an employer may not discriminate “because of sex”. Harassment may be viewed as a form of discrimination “because of sex”.
According to two recent cases, Pennsylvania Federal Courts view “because of sex” more broadly than the traditional notions of sexual harassment in the workplace.
Marykate Ellingsworth, an employee of Hartford Fire Insurance Company, claimed that she was routinely called derogatory names by her co-workers based on her co-workers’ mistaken perception that she was a lesbian. This perception, allegedly based on Ms. Ellingsworth’s style and dress, was grounded in gender stereotypes and stereotypes about sexuality. On March 23, 2017, in Ellingsworth v. Hartford Fire Insurance Company, the Eastern District Court of Pennsylvania held that, based in part on the atmosphere of harassment, Ms. Ellingsworth had a viable claim of discrimination “because of sex”.
In another case, Tracy Resetar claimed that she was routinely harassed by her female supervisor, who made regular comments about Ms. Reseter’s body and selectively enforced a strict dress code for women but not for men. On March 23, 2017, in Resetar v. Phillips Feed Service, Inc., the Eastern District Court of Pennsylvania held that same-sex sexual harassment may constitute harassment because of sex.
In light of these cases, what’s a Pennsylvania employer to do? Here are three tips:
- Make sure that middle managers are properly trained to identify harassment or discrimination “because of sex”.
Middle managers typically have the most day-to-day contact with employees, which makes middle managers often times the first line of defense for spotting potential problems and receiving complaints from their direct reports. Also, courts have held that middle managers’ discriminatory conduct can create liability for the organization. While most managers would probably not intend to apply policies unfairly, ignorance of the law is no excuse.
- Develop policies that are based on an accurate understanding of Pennsylvania law.
Developing, distributing, and implementing legally-defensible sexual harassment policies are crucial in protecting your organization from liability. On the other hand, where the policy does not reflect the criteria correctly provided by the law, a policy may do more harm than good. Particularly in light of the expansive view taken by the courts, it is important to review and, if necessary, update your current policies.
- Consult an attorney who understands Pennsylvania employment discrimination law to guide you in addressing claims of harassment or discrimination.
Education can prevent litigation or increase your chances of success if litigation cannot be avoided. Accordingly, the best advice is to call a knowledgeable employment attorney to help you understand your legal obligations, as a Pennsylvania employer.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
