*1 975A.2d 555 L. and Chris A. Weaver Mallissa WEAVER Shipman, individually Walter W. and John K. HARPSTER Services, Harpster Shipman and Financial and t/d/b/a Associates, Susquehanna Inc. and Insurance individually Appeal Harpster, of Walter W. and t/d/b/a Harpster Shipman Financial Services Associates,
Susquehanna Insurance Inc. Supreme Pennsylvania. Court of
Submitted March 2008. July Decided *3 Zicolello, P.C., Zicolello, Schemery Esq., Michael John Harpster, for Walter W. Williamsport, Onorato, Erie, Dieteman, A. for Esq., Esq., David F. John Northwest Penn- Manufacturers’ Association of amicus curiae sylvania. Friedmann, Legal for Pacific Foundation. Esq.,
John Paul Kerstetter, Kerstetter, & Esq., Schlesinger Peter Todd L.L.P., Shamokin, for K. Shipman, John Weaver, II, Mallis- Sunbury, Vaughn Esq., Wiest
Roger L. A. sa and Chris SAYLOR, EAKIN, CASTILLE, C.J.,
BEFORE: GREENSPAN, TODD, BAER, JJ. McCAFFERY OPINION BAER. Justice Pennsylvania (PHRA),
Under the Human Act Relations 951-963, §§ P.S. with four or more are employees prohibited from discriminating against their on the employees basis of sex. See 43 P.S. §§ 954 (defining employer), 955 law, “unlawful (listing discriminatory practices”). At common an employer may terminate an any at-will reason unless that reason violates clear mandate of public policy emanating from either the Pennsylvania Constitution or statu- tory case, In pronouncements.1 this we address intersec- tion of the PHRA and the public policy exception at-will employment, namely, whether an with fewer employer than four employees, although subject to the prohibi- PHRA’s tion against discrimination, sexual prohibited nevertheless is from discriminating against an employee on the basis of sex. Because the PHRA reflects the unambiguous policy determi- nation the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsyl- vania, we are constrained to conclude that a common law claim for wrongful discharge, resulting discrimination, from sex will not lie against those employers. We therefore reverse the Superior Court.
In August of
John K. Shipman and Appellant Walter
W. Harpster
(Employer)2 hired Appellee Mallissa Weaver
(Employee) as an at-will employee to be the administrative
assistant and office manager at their small financial planning
times,
office.3 At all relevant
Employer employed less than
*4
discussion,
1. For ease of
we refer
constitutionally
to the
statuto-
and/or
rily
Pennsylvania policies
anchored
solely
“public policy.”
as
Shipman
2.
Harpster
together
Mr.
and
operated
Mr.
the businesses of
Harpster
Shipman
&
Susquehanna
Financial and
Insurance Associates.
Appellant/Employer
Harpster,
individually
is Mr.
Harper
and
&
t/b/d/a
Shipman
Susquehanna
Financial and
Insurance Associates.
infra,
3. As will be
discussed
the at-will
provides
doctrine
statutory
that absent a
provision
contrary,
contractual
to the
the
employer
and
power
each have the
employ-
to terminate the
relationship
any
ment
Geary
for
or no reason.
v. United States Steel
Corp.,
(1974).
Exceptions
to this
general
recognized
rule have
only
been
limited
most
circum-
Em-
her
year
employmеnt,
During
employees.
four
subjected to continued sexual
that she was
alleges
ployee
Em-
complaint,
to her
According
by Employer.
harassment
relationship
in a
and
engage
sexual
Employee
invited
ployer
contacts,
and physical
sexual
inappropriate
committed various
her,
hugging
making inappro-
rubbing, touching
such as
attire,
her
and sexual
appearance,
comments about
priate
the office and to
closely following her around
proclivities, and
money
go
Employee
also offered
Employer
the bathroom.
on a
“for
company
trip
him and
her
requested
to bed with
at 4.
Amended
purposes.”
Complaint,
entertainment
1/20/2004
advances',
unwelcomed
rejected these
Employee repeatedly
rejected,
Upon being
that the
cease.
and demanded
behavior
working conditions intolerable.
Employer
Employee’s
made
working
conditions created
Id. at 5. Due to
unbearable
on
2002.4
Employee resigned
June
Employer,
“for
opportunity
a “civil
recognizes
right”
The PHRA
as
he is
qualified,”
an
to obtain
for which
individual
§
953.
on the basis of sex. See
P.S.
without discrimination
PHRA, id.,
to the
which
right
pursuant
This
is enforceable
Relations
Pennsylvania
Human
Commission
empowers
(PHRC)
of sex discrimi-
investigate complaints
accept
43 P.S.
employees.
nation
of four or more
See
by employers
stances,
discharges
employees
at-will
would threaten clear
where
id.,
(holding
an
public рolicy. See
Following PHRC’s of her Employee that she alleged had exhausted her administrative remedies PHRC, through and filed an action in the court common pleas alleging following eight wrongdoing against counts (1) (2) harassment; Employer: quid pro quo sexual hostile (3) harassment; work environment sexual discrimination and PHRA, (4) 955; harassment violation of the § see 43 P.S. (5) PHRA, id.; constructive violation of the see (6) (7) wrongful discharge; assault and battery; invasion of privacy; and loss consortium.6 filed Employer prelimi- nary objections, averring that Employee plead could not causes оf action upon alleged based violations of the PHRA because Employer was not an employer as defined PHRA, and, further, that sex discrimination claims are not legally cognizable at common law because the PHRA is the remedy exclusive related discrimination. The trial agreed, finding court on June 2004 that Employee’s could not complaint proceed because Employer had fewer than four employees therefore did not qualify as an “employer” PHRA, under the and further finding that Pennsylvania does recognize common law cause of sounding action in sex discrimination, harassment, sexual or termination of at-will discrimination, based sex upon outside of the PHRA. Consequently, the trial court dismissed the first five permitted counts and the case to on proceed remaining counts, sounding in assault battery, invasion of privacy, and loss of consortium.7 defined, Specifically, employer
5.
part,
in relevant
as follows:
"employer”
The
respect
discriminatory
term
with
practices
based
race, color,
sex,
age,
origin
on
non-job
national
or
handicap
related
fraternal,
disability,
religious,
includes
charitable and sectarian
corporations
employing
and associations
persons
four or more
within
the Commonwealth.
954(b).
§
43 P.S.
husband,
Weaver,
Employee's
sought
6.
damages
Chris
on the claim of
loss of consortium.
Pre-trial,
granted
Shipman’s
summary
trial court
Mr.
motion for
case,
judgment, dismissing him from
Harpster’s
and Mr.
motion for
judgmеnt
summary
respect
privacy
with
to the invasion of
claim. At
and loss of
battery
assault and
jury
trial for
Following
*6
in favor of
consortium,
Employer.
returned a verdict
jury
Court,
reversal
requesting
to the
appealed
Superior
Employee
court
that the trial
complaint
of her amended
of two counts
28,
in its
2004 order:
pre-trial
dismissed
June
(Count 3),
the PHRA
and
in violation of
and harassment
(Count 4).
of the PHRA
in violation
constructive
policy
to find a
Superior
public
Court
Employee urged
doctrine,
it
arguing
the at-will
exception
all
to foreclose
arbitrary
against
would be
by employ
harassment
avenues of relief for victims of sexual
agreed
The
employees.
Superior
ers of
than four
Court
less
must
although aggrieved parties
with
Employee, finding
PHRC,
remedies with the
first exhaust their administrative
Pa.
559
Applications,
v.
Clay
Computer
see
Advanced
(1989),
ultimately resorting
are not
they
deprived
A.2d
v.
Harpster,
to the courts. Weaver
962(c),
that if
provides
§
which
(Pa.Super.2005) (citing
P.S.
“shall be
complaint,
complainant
the PHRC dismisses a
in the courts of common
of the
bring
pleas
able to
an action
on the
to freedom from discrimi
right
Commonwealth based
Act”).
court
that there
by
recognized
nation
this
The
granted
of action
against
employer
is no common law cause
v.
employee,
Geary
termination of an at-will
see
United States
(1974), except
The with that there Supеrior agreed Employee Court fact, a clear sex discrimination public policy against and/or regard harassment in the without to the size workplace sexual of the The court found an of this employer. expression in the declaration of the to be free from PHRA’s case, granted Employee’s compulsory non- the conclusion of the court Susquehanna Harpster Ship- as to Insurance Associates and suit Services, dismissing Consequently, man Financial them from case. only remaining Appellant Harpster, and the defendant was Mr. remaining battery and were assault and loss of consortium. claims discrimination in the on workplace § based sex. 43 P.S. 953.8 The court found further support this clear public policy against sex discrimination and sexual harassment in the Penn- sylvania Equal Rights Amendment (Equal Rights Amend- ment), I, Article Section 28 of the Pennsylvania Constitution, which provides: “Equality of under rights the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the Const, individual.” § art. Pa.
The Superior Court found that because sex discrimination is
prohibited under the PHRA and the Equal Rights Amend-
ment,
it constitutes “a legal injury whose recompense is
clause,
mandated
I,
remedies
Article
Section
Pennsylvania
Weaver,
Constitution.”
All courts shall be open;
every
and
man for
injury
an
done
lands,
him in his
goods person
reputation
or
shall have
remedy by
law;
due course of
justice
and
and
adminis-
sale,
tered without
denial
delay.
or
Const,
I, §
art.
11. Considering
clause,
the remedies
the
Pa.
Superior Court reasoned that the legislature would not have
defined certain acts as illegal via both the Constitution and the
PHRA, thus
establishing
public policy unequivocally con-
demning
conduct,
such
and then remove all judicial recourse
for the
Weaver,
victims of that conduct.
The
for an
employment
individual to obtain
for which he
qualified,
accommodations,
is
and to obtain all
advantages,
the
facili-
privileges
and
any public
ties
of
any housing
accommodation and of
accommodation
property
and commercial
without discrimination be-
race, color,
status,
creed,
cause of
religious
familial
ancestry, handi-
sex,
cap
disability, age,
or
origin,
guide
national
the use of a
or
blindness,
support animal
of
physical
because
deafness or
handi-
cap of the user or because the user
support
is a handler or trainer of
guide
hereby recognized
animals is
as and declared to
abe
civil
right which shall be enforceable as set forth in this act.
”
public policy....
of a clear
contravention
a direct
appears
Court,
Weaver,
According
Superior
We of action for law cause common Pennsylvania recognizes in cases termination of at-will discriminatory a remedy from precluded pursuing is employee where questions of review over the PHRA.9 standard under Our is as this scope plenary, our of review law is de novo and making its decision. review the entire record may Court (2004); n. 5 849 A.2d v. 578 Pa. Kripp Kripp, Jones, n. 4 571 Pa. Township Buffalo (2002). to ter- employer’s right an Employer emphasizes
Although
reason,
recognizes
he
employee
any
minate an at-will
wrongful
cause of action for
can be a common law
there
conduct
employer’s
where
discharge of
at-will
a clear mandate of
violates
terminating
(1989).
A.2d 471 (finding no policy violation where was discharged following unsubstantiated accusa- behavior). tion of criminal
Citing Clay, Employer asserts that it “well is settled” that a plaintiff may bring a common law claim for employment discrimination where the claim cannot brought be under the PHRA. Nor can bring she an independent common law cause of action outside of the PHRA for wrongful termination based upon discrimination, because there is no public policy exception to the at-will employment doctrine for sex discrimination by an employer of less than employees. four
In conclusion, reaching this Employer disputes both sources of public policy upon by relied the Superior Court and argues that neither the PHRA nor the Equal Rights Amendment can properly be upon relied as a source of public policy against Employee’s First, PHRA, termination. regarding the Em- ployer argues that it clearly inapplicable because it exempts small employers of less than four employees, thus demonstrat- a ing public policy to protect small employers from defending
against claims based on sex discrimination. To find PHRA a public reaches small employers when the language PHRA itself is explicitly limited to employers of four would, or more employees according to Employer, require this Court to usurp the role of the legislature and extend protections to employees that the legislature chose not protect the PHRA.
Employer asserts that the courts have never utilized a wrongful termination statute such as the PHRA recognize public policy exception to the at-will employment doctrine beyond protections afforded that statute. See Holew- inski v. Children’s Hosp. Pittsburgh, Pa.Super. (1994). Holemnski, A.2d 712 In the plaintiff asserted that she was wrongfully discharged because she had acted as a whistle- blower. The Superior Court acknowledged that although Law, Commonwealth has a Whistleblower it only applied employees from discharged government entities. As the de- fendant in Holewinski was not government entity, *9 Law. There- the Whistleblower protected by was not
plaintiff public policy to find a fore, declined Superior Court the need to premised case on plaintiffs in the exception Holewinski, at 715. 649 A.2d Simi- whistleblowers. protect a public to decline to find this Court larly, Employer urges who are employees to at-will policy exception a statute premised upon sеxually by harassed small Second, Equal regarding exempts employers. that small public policy, Employer the source of Amendment as Rights terms, “equality the Amendment affords argues that its ” Af- by Employer). added (emphasis under the law rights the conduct under the law circumscribes fording equal rights in their entities and officials of state and local governmental formulation, enforcement of statutes and interpretation, Comm’r, & Indem. v. Ins. See Accident regulations. Hartford (1984). Here, that argues Employer 482 A.2d which she any cannot law under does Employee point possess equal rights. that a clear public policy
Because does not believe Employer here, not address the Superior was violated it does Court’s Employer, to the Remedies reasoning regard with Clause. however, herein is remedies argues Employee that not without injury. Specifically, Employer argues Employee for her to obtain remedies on the torts opportunity premised had the assault, v. battery, privacy. DeAngelo and invasion of See (“an 515 A.2d Fortney, Pa.Super. will be an privacy ordinarily adequate action for invasion of which inter- remedy highly unreasonably offensive conduct alone.”). feres with to be left another’s argues bring In she is entitled response, Employee common law cause of action for the termination of at-will a clear man- implicates because her termination the Equal date of articulated the PHRA and Reed, Rights Davenpоrt Amendment. See (“to (Pa.Cmwlth.2001) justify application public point must to a clear policy exception, constitution, statutes, regulations, articulated case.”). to the facts in the judicial directly applicable decisions *10 Although she that we acknowledges have never held that there is a common law cause of action for termination of an at-will discrimination, due to sex Employee urges this Court to chart new territory and find that her termination a clear implicates mandate of public policy such it is an exception to the at-will employment doctrine. is,
The source of
public policy,
this
according
Employee,
first,
PHRA,
which she asserts embodies a public policy
bestowing right to be free from discrimination
on sex
based
in the workplace.
Clay,
See
If Employee permitted is not to pursue a common law cause case, of action in this she asserts that employees of small will employers be left without a remedy for sex discrimination in the workplace, which would be contrary to the Remedies Const, Clause of the Pennsylvania Constitution. See Pa. art. (“All injury man for an every courts shall be and open; § 11 lands, shall have reputation or goods, person done him his law, justice and adminis- due course of remedy by sale, urges She this Court delay.”). without denial tered only regulate decision to legislature’s not to find that permission employees granted with four or more employers sex discrimination in the to commit acts of smaller liability. without fear of workplace emрloy- of the at-will by reviewing principles begin We to it. We will public policy exception ment doctrine and Equal Rights the PHRA Amendment then examine establish a they to determine whether respectively *11 specifically doctrine exception employment to the at-will from sex discrimina- employment resulting for termination of in the without to the size of workplace, regard tion employer. statutory
In
a
or contractual
Pennsylvania, absent
an
party may
to the
either
terminate
provision
contrary,
Pa.
Geary,
or no reason.
employment relationship
any
171,
v.
McLaughlin
319 A.2d
See also
Gastrointestinal
Inc.,
307,
Pa.
Subsequently, Clay, Pa. we expand- ed on our decision in In Geary. Clay, an employee brought a common law cause of action seeking damages for wrongful filing without first a complaint with the PHRC. We rule, first noted that general as a there is no common law cause of action an against employer for termination of an at- will relationship. Clay, 559 at A.2d 918. See also Co., Householder v. Kensington Mfg. 360 Pa.Super. (1987). Second,
A.2d 461
we noted that there are exceptions
to this
rule in
general
“only
circumstances,
the most limited of
where
discharges
employees
at-will
would threaten clear
of public policy.”
mandates
Clay,
under
narrow circumstances.
later,
years
Several
we recognized such narrow circum-
590,
in
stances
Shick v. Shirey,
(1998),
552 Pa.
502
Sales, Inc., 297, (2005), that the 511 we found 883 A.2d employee the termination of an public policy prohibited same not to seek a subordinate declining compel compensation. workers’ the strong presump cases demonstrate that
These
An
relations is at-will.
tion of all non-contractual
a termination of that
a cause of action for
employee may bring
circumstances, where the
in the most limited
relationship only
In
public policy.
a clear mandate of
implicates
termination
to declare
judicial system,
pro
of the courts
power
our
Mamlin v.
sharply
nouncements of
restricted.
public policy
Ass’n), 340 Pa.
Beneficiary
Police
(City Philadelphia
Genoe
(1941). Rather,
it
the legislature
409
is for
The
policies
to formulate the
of the Commonwealth.
public
what is or is not in accord with
right of a court
declare
“only
given policy
obviously
exists
when a
is so
public policy
health,
morals, or
safety,
for or
welfare
against public
a virtual
to it.”
unanimity
opinion
regard
there is
Mamlin,
may
in the
of cases
Only
Following Geary, public policy exceptions
employ-
recognized
wrongful discharge
ment have been
where
statutory
claims have involved
on
and constitu-
infringements
Pennsylvania’s
tional
These
demonstrate
tradi-
rights.
cases
should be
exceptions
tional view that
to at-will
not to
carefully sculpted
employer’s
few and
so as
erode
Rothrock,
it
operate
inherent
its business as
chooses.
Shick,
Allegheny
Hunter v. Port Auth.
supra;
supra;
County,
Pa.Super.
(recognizing
503
a
conviction for
prior
offender
on
basis of
pardoned,
which the offender had been
unless the conviction
job
was
related to
reasonably
perform
sought);
fitness
120,
Highhouse,
Pa.Super.
(concluding
443
Where the
has
implicated
termination
not
a clear mandate
of public policy, this Court and the
Superior Court have
permitted a
law
common
cause of action for
dis
wrongful
charge.
McLaughlin,
See
750 A.2d 283 (finding
that an at-will
did
not state a claim for wrongful
under
discharge
public policy exception to
at-will
employment doctrine based solely upon alleged retaliatory
termination of her
violation of the Occupational
Act); Tourville,
Safety
and Health
Pa.Super.
353
(holding
that the
of an
employee hospitalized
Martin,
illness did not violate
policy);
Pa.Super.
199, 511
830 (finding
A.2d
no cause оf action where an
employee was
in retaliation for
discharged
placing
adver
tisement with a competing paper); Gillespie,
Pa.Super.
(holding
A.2d (finding no cause of action where an employ ee of a home was nursing discharged applied because she *14 facility); run a Rossi v. competing
the state for a license to 39, 489 A.2d Pennsylvania University, Pa.Super. State (1985) a clear (holding that there was no violation of an public policy discharged mandate of where was revenues); curtail the misuse of tax attempting public Services, Inc., Parcel Pa.Super. Cisco United (finding employ- A.2d 1340 no cause of action where discharged being wrongly ee was after accused and subse- quently of criminal conduct in connection with his acquitted employment).
A Em- necessary analyze brief review of the PHRA is ployee’s attempt to demonstrate a cause of action based on the termination of an at-will In the and employee. findings PHRA, policy legislature declarations of specifically announced a broad declaration discrimination policy against applicable to “all individuals:”
(a) The of practice policy against discrimination individu- als or reason of their ... sex ... is a matter of groups by concern of the Commonwealth. Such discrimination fo- unrest, ments dоmestic strife and the rights threatens and Commonwealth, privileges of the inhabitants of the and undermines the foundations of a free democratic state. The ... equal employment denial of because of opportunities discrimination, consequent such and the failure to utilize the extent, productive to their capacities individuals fullest deprives large segments population of the Common- wealth of earnings necessary to maintain decent standards necessitates their resort to relief inten- living, public conflicts, sifies group thereby resulting grave injury to health and welfare.... public (b) It is hereby declared to be of this Commonwealth to foster the of all employment individuals in accordance their capacities regardless with fullest of their ..., ... to safeguard right sex their to obtain and hold without such employment discrimination.... (b). 952(a),
43 P.S.
In accord
public policy,
legislature
with this
established
for an individual to obtain
opportunity
“[t]he
for which he
qualified”
without sex discrimination is “a civil
right which shall be enforceable as set forth in this act.” 43
Thus,
§
PHRA,
P.S.
953.
in the first section of the
legislature
a terms,
articulated
in the
broadest of
establishing that
the Commonwealth’s interest
in fostering
regard
without
to sex applies
individuals,”
to “all
952(b).
§
without limitation. 43
section,
P.S.
In the next
however, the legislature
expressed
to freedom
from
the workplace is a civil right “which
shall be enforceable as set forth in
§
this act.” 43 P.S.
Therefore, despite the broad policy
articulation of Section
*15
the right established therein is only
pursuant
enforceable
to
the terms of the PHRA: the PHRA establishes both a
to
right
be free from sex discrimination in the workplace
provides
the administrative procedures by which
rights
those
shall be
953;
§
vindicated. 43 P.S.
Clay,
A.2d at 919. The use of
the word ‘shall’indicates that the legislature intended to make
the
procedures
administrative
of the act the mandatory proce-
dure
which to vindicate the rights created
Clay,
therein.
919; Householder,
The PHRA defines “employer” as including “religious, fra- ternal, charitable, and sectarian corporations and associations four or employing more within persons the Commonwealth.” 954(b). § 43 P.S. Specific “unlawful discriminatory practices” are described in Section which makes it an unlawful discriminatory practice any employer” “[f]or to discharge from employment or otherwise discriminate against an employee on 955(a). Thus, § basis of sex. 43 P.S. despite announcing a broad public policy that encompasses “all individuals” in Section the legislature chose to characterize as an “unlaw- ful discriminatory practice” only discrimination by “any em- ployer,” expressly defined to exclude employers of fewer than four employees, thereby limiting the reach of the act.
Further, the PHRA vests the with authority PHRC investigate allegations of and, unlawful discrimination if proba- ble cause exists credit the allegations, to endeavor to eliminate the asserted unlawful discrimination. § P.S. The legislature made PHRC exclusive authority to it alia, because unlawful sex discrimination
remedy, inter broad agency with “only an administrative recognized [sic], could experties exercising particular powers, remedial of unlawful dis problem with the effectively pervasive cope Ass’n, 453 Cemetery Park v. Alto-Reste crimination.” PHRC (1973). authority to Entrusting A.2d Pa. PHRC, to the resolve claims of courts, legislative of a expression than the is the rather of common claims out of the courts keep such decision reme exhausts her administrative until the pleas, complainant claims dies, resolving such expertise and to concentrate 919; Alto- 559 A.2d at agency. Clay, in an administrative See Ass’n, complainant’s A.2d at 887. A Cemetery Reste Park for redress for unlawful discrimi to resort to the courts right nation is not foreclosed: discrimination,
(c) (1) if a In cases a claim of involving act, invokes the set forth this complainant procedures in the courts of the that individual’s of action Com- (1) year not be foreclosed. If within one monwealth shall Commission, with the filing complaint after the into or has not entered complaint Commission dismisses to which the is a agreement complainant a conciliation notify complainant. the Commission must so On party, a notice the shall be able to receipt complainant *16 of such in the of common of the bring pleas an action courts based on the to freedom from discrim- right Commonwealth by inatiоn this act. granted 962(c). therefore, has the ultimate A complainant, P.S. to resort to the courts “based on the to freedom right from by year
from discrimination this act” within one granted enter into complaint when the dismisses the fails to PHRC complainant party. a to which the is a agreement conciliation “employer” There is no that because is defined question not an Employee exclude his discrimination of was Employer, PHRA. by as defined the discriminatory practice unlawful that, the PHRA does not although Employee’s argument in to his few behavior relation directly regulate Employer’s general indirectly by announcing it does so employees, all public policy protect employees, regardless of whom they for, work from sex discrimination in the workplace. She argues policy declaration of 952 can be Section from separated the rest of the act and that it demonstrates a such discrimination that against applies equally to everyone. Essentially, argues she that victims of discrimi- by nation of four or employees more are bound by PHRA, she, procedures while and other employees employers, of small resort may by relying to the courts on the public policy found in Section We must therefore deter- mine whether the expression contained Section PHRA, independent of rest of the creates a common law cause of action for wrongful termination that is generally to all aрplicable employees of the Commonwealth.
Clay is instructive in analyzing
question.
this
In
Clay,
plaintiff alleged that her
at-will
had been wrong-
fully
terminated
her employer because she had rebuffed
the advances of one of defendant corporation’s management
level employees. 559
at
A.2d
918. Plaintiff
brought
action
in the trial court seeking
damages
wrongful discharge,
without first
a claim
making
pursuant to the PHRA. The trial
court held that the PHRC
jurisdiction
had initial
over the
matter because it
involved
firings
connection with sex
harassment and discrimination in the workplace. Because
had
plaintiff
not sought
through
redress
the PHRC before
courts,
turning to the
the trial court dismissed her claims.
The Superior
court,
Court reversed the trial
holding
administrative remedies available
through
PHRC did not
prevent plaintiff
judicial
from seeking
remedies based upon
common
rights.
law
In so holding, the
ex-
Superior Court
Householder,
pressly overruled its
prior decision
360 Pa.Su-
per.
On this viewed the Court decision in Householder as correct, that held the in Superior overruling Court erred PHRA that the Clay, explained
it.
Unlike
PHRA;
exhaust her administrative remedies with the
howev-
er, the PHRA dismissed her
because
complaint
Employer
statutory
“employer.”
not included
definition of
Not-
distinction,
withstanding
Clay
this
teaches that there is no
common law
for termination of an at-will
independent
remedy
on the
of sex discrimination.
The PHRA
Clay.
basis
statutory remedy
was crafted to
for unlaw-
provide
explicit
claims,
ful discrimination
a narrow
to at-
exacting
exception
Householder,
464;
will
See
520 A.2d at
Sola v.
employment.
(3d Cir.1986); Carney
509 general claims of discrimination are not that defined as unlawful under the act. to
Employee seeks isolate the broad of Section 952 from the substantive and procedural remainder PHRA. on She focuses Section 952’sdiscussion of “all individu- demonstrating public policy als” as at-will exception to employment. basis, however, § See 43 We P.S. find no to create action independent cause of for termination of an at-will outside of the employee by remedies established the legislature through the Although PHRA. the artic- legislature ulated a to eliminate all forms of invidious discrimination, including workplace, sex discrimination in the it chose the right to define to freedom from discrimination terms of the number of individuals employed by employ- the er.10
By employer in the defining employees, terms of number of the legislature has declined sex to make discrimination action- able against employers of than fewer four This employees. exemption set forth the is PHRA similar to the exemption VII, in Title law, the cornerstone of federal anti-discrimination which sets a threshold for employer at fifteen em- coverage 2000e-16(a). ployees. § 42 U.S.C. Although there is no specific Pennsylvania legislative history explaining available why the lеgislature exempt chose to small it is employers, that it noteworthy has lowered the necessary number of occasions, employees on two widening thus of those scope employers barred the PHRA from unlawful discrimination. (1955), 27, 744, § See 43 § P.S. Oct. P.L. 4 (defining “employer” one as employing twelve more Act employees); 10. The dissent likewise seeks to isolate Section 952 from the rest of the Unfortunately, legislature PHRA. has made the PHRA the exclusive discrimination, remedy state law preempting for unlawful the advance- ment of law wrongful discharge common claims for based on claims of Accord Directory Corp., discrimination. Brennan v. Nat’l Tel. 331, (E.D.Pa.1994) ("[T]he F.Supp. preempts parties PHRA from bringing wrongful law common claims for based on claims of exclusive.”). discrimination because the of PHRA remedies are To exception create an to the at-will doctrine as the dissent advocates, legislative despite a preempts enactment common law discrimination, contrary causes of action unlawful to the intended exclusivity of the PHRA. (1965) 1525, employee (lowering § P.L. Jan. P.L. six); Act Nov. from twelve
requirement
four).11
six to
from
requirement
§
(lowering
decision
legislature’s
regarding
likely explanation
The
with anti-discrimination
complying
firms from
small
exempt
Common
sought
protect
legislature
laws is
with
associated
from the burdens
wealth’s smallest
defending against
law and
with the
complying
Exemption
Firm
The Small
Carlson,
claims.12 See
Richard
*19
Employment
Doctrine in
Discrimi
Employer
Single
and the
Law,
Clackamas
(2006);
1197
L.Rev.
nation
80 St. John’s
Wells,
446-447,
Assoc.,
440,
v.
P.C.
538 U.S.
Gastroenterology
(2003)
that
1673,
(noting
congres
Indeed, to the at-will adhering employ our precedent only that we can declare ment indicates presumption obviously where it is “so of this Commonwealth health, morals, or welfare that public safety, for or against in to it....” unanimity opinion regard there is virtual Mamlin, at 409. The decision to lower legislature’s four, not to threshold from twelve to six to but one, em opinion every the lack of unanimous indicates Em be from sex discrimination as ployee protected should to legislature opportunity asserts. The has had ployee employers compli the merits of small from argue exempting where it should establish the exactly ance and to decide It not to explicitly protections threshold. chose extend of small The against employees employers. us. the legisla wisdom of this decision is not before Where will spoken, interpret statutory provisions ture has we interest. 319 A.2d at Geary, advance matters of See can (recognizing legislature statutory create Rather, by to at-will we are bound exceptions employment). of the PHRA adherence to the Pennsylvania’s terms reject employment Employee’s argu doctrine at-will beyond ments. afforded a statute Extending protections its the courts to act as a explicit require limitations would super-legislature.
As we
the at-will
developed Geary, restricting
employ-
ment
“the
presumption
unwisely
legiti-
would
interfere with
mate interest of
the best
hiring
retaining
available. The
threat of suit
personnel
everpresent
might
[sic]
well inhibit the
of critical
making
judgments by employers
Moreover, consequence finding public excep- the of tion to at-will for employees against discriminated by that do not the of statutory meet definition employer would disturb the administrative scheme PHRA. system, It would result a two-tier victims whereby of discrimination either proceed through the PHRC through the common pleas depending courts on the size of their employer. This result not advance legislative would the intent that the PHRC would to bear bring particular expertise in handling 919; discrimination cases. See at Clay, 559 A.2d Inc., v. Fye Transportation Central A.2d (1979) (“It clear legislation from the the General of Assembly procedures was the view that provided by the represented [PHRA] most effective approach prob- to the discrimination.”); Feeser, lem of PHRC Pa.
A.2d (expressly noting inadvisability having the courts of cases, common decide pleas chosen, that “the stating Legislature PHRA, hаs charge an jurisdiction administrative with the agency initially receive, investigate, conciliate, hear, and complaints decide discrimination.”). alleging unlawful
Further, if permitted we a common law cause of action facts, termination an at-will under these where the employer is not expressly covered the statute created the policy, we would create the concern that other statutes that explicitly exempt certain employers from compliance actually express general apply even those the legislature chose to If exclude. legislature chooses to expand statutes to cover employ- more ers, it is clearly role, within its authority to do so. Our however, does include expanding beyond statutes their terms. 962(c)
Finally, Employee directs our attention to Section PHRA, provides which that upon dismissal of a complaint, *22 in the action courts bring an year has one the complainant by granted freedom from discrimination on the right based her dismissed that because PHRC urges the PHRA. She in the cause of action her bring is entitled to she complaint, that however, qualification ignores This position, courts. the right is “based on to the courts to resort right the ultimate 43 P.S. by this act.” granted from discrimination to freedom to freedom 962(c). right a grant Employee § The act does in a “employer” it has defined because from discrimination Moreover, in- the obvious Employer. excludes mаnner that 962(c) who is complainant a is to permit of tent Section in a advocacy decision-making with the PHRC’s dissatisfied reasons For all the further relief. case to seek cognizable expand read to sub silentio herein, it not be articulated should a defined employer created to sue the legislatively sex discrimination. Equal Rights that the Employee’s turn to assertion
We now
sufficient to
a
of
supports
finding
Amendment
in cases
at-will doctrine
an
exception
create
the employ-
to the size of
regard
without
of sex discrimination
amend-
adopted
equal rights
Pennsylvania
er.
In
under the law
rights
of
“[e]quality
ment that commands that
in the
abridged
denied or
Commonwealth
shall not be
Pa. Const.
of the sex of the individual.”
because
Pennsylvania
rights
I,
equality
Amendment
insures
§
art.
28. This
to eliminate sex as
basis
law and seeks
under the
is no
“The sex of citizens of this Commonwealth
distinction.
legal
of their
factor
the determination
permissible
longer
impose
The law will not
legal responsibilities.
rights
of a
the members
upon
or different burdens
different benefits
man or woman.”
they may
be
society based on the fact
(1974).
Henderson,
Henderson
Amendment estab
Equal Rights
The language
“under the law.”
it reaches sex
lishes
reach as
have
its
interpreted
As this precedent legislation embodying gender Amendment to invalidate Rights Amend- Equal Rights have not invoked the classifications. We tort, have we ment to cause of action for nor provide private it to invalidate a statute that makes no distinctions invoked any has not identified law under gender. Employee based on is not being against. being which she is discriminated She Rather, rights gender. under the law due to her equal denied exempt made the decision to small legislature has Therefore, with the PHRA. Em- compliance from *24 a discriminated because she works for ployee being against a does not the employer. implicate small Such distinction Equal Rights Amendment. PHRA the Equal
Because hold that neither the nor we. provides exception Amendment a to the Rights policy employment by at-will doctrine for sex discrimination an em PHRA, by not covered the we with the ployer disagree the Superior analysis regarding Court’s Remedies Clause. Court, having contrary holding The concluded to our Superior the a Equal Rights provided that the PHRA and Amendment doctrine, the public policy exception at-will legislature stated that it was difficult to believe that the would the PHRA the illegal first define certain acts as via both constitution, establishing policy unequivocally thus a public conduct, judicial such then remove all recourse condemning however, that The did legislature, for the victims of conduct. discrimination; unlawful all forms of rath not characterize as er, perpetrated by it unlawful discrimination as that defined which, above, “any employer,” as described includes employers PHRA, therefore, four of or more The employees. both not, the It did right remedy. defined and the See as the Clay. found, Court extend the freedom from Superior right to sex workplace of smaller em- employees as act. ployers by defined therefore, conclude,
We not Employee has demonstrat- ed there exists a clear mandаte policy prohibit- of public sex discrimination all ing employees sufficient to overcome PHRA, at-will doctrine. The which creates exception at-will, narrow to employment prorides remedy conduct it It prohibits. does not demonstrate a public sufficient its own overcome to employers limitation four or more employees. We cannot overlook the fact that the General Assembly decided to make the behavior illegal Employee which complains. While the PHRC announces a to be right free from sex discrimination in the workplace, 48 955(a), it P.S. qualifies right this it only granting where the employer Id.; meets statutory 954(b). definition. 43 P.S. It is not the role of this Court to private create a cause of action where the General Assembly has decided not to create or a right remedy for victims of sex discrimination by small employers. Allowing a discharged at-will employee to com- mence action in premised the courts on the to be free from discrimination on sex based when the statute creating a right such does not extend it to her would be logically inconsistent with the legislature’s limited the haring PHRA’s reach to employers of four or more employees. We reverse the order of the Court. Superior SAYLOR,
Justice EAKIN and McCAFFERY and Justice join GREENSPAN opinion.
Justice TODD files a dissenting which opinion Chief joins. Justice CASTILLE TODD, dissenting.
Justice
I respectfully, but vigorously, dissent.
I
the
believe
Penn-
Constitution,
sylvania
supported
law,
statutory
by
makes it
our Common-
public policy
the
clear
unmistakably
discrimina-
gender
invidious
not tolerate
does
simply
wealth
to
respect
harassment —with
of sexual
in the form
tion—here
fully
more
reasons stated
For the
employment.
continued
the at-will doc-
vitality
the
below,
reaffirm
I would
while
join
Commonwealth,
that we should
I believe
trine in our
and recognize
similar issues
considered
that have
other states
those individuals
discharge, for
wrongful
a cause of action
Human
Pennsylvania
of the
coverage
fall outside of
who
Act”),1
termi-
(“Human
to redress a
Relations
Act
Relations
fundamental
our Commonwealth’s
contravenes
nation that
Thus, I would
discrimination.
against gender
Superior
Court.2
affirm
order
years,
for more than 100
Majority,
by
As
explained
employer-
consistently governed
that has
law
long-standing
the at-will
our Commonwealth
relationships
employee
289, 297,
Co.,
L.E.R.
Pittsburgh &
Henry v.
doctrine.
doctrine,
(1891).
generally
it is
the at-will
2. As does the type alleged consti- in this case harassment of assume that sexual law. Commonwealth's gender under our a form of tutes A.2d at 557 n. Majority Opinion at 492 n.
519 a “clear of v. public policy.” Geary venes mandate United (1974). 171, 185, 174, Steel 456 Pa. 319 A.2d Carp., States As recognized by Majority, discerning whether there public policy, exists such dominant our Court looks to the Constitution, enactments, Pennsylvania judicial legislative 501-02, 563; Majority Opinion decisions. at 975 A.2d at Inc., McLaughlin 307, v. Pa. Specialists, Gastrointestinal (2000). 750 A.2d of our power While courts limited, to formulate of pronouncements public policy is “when a given policy obviously health, is so for or against safety, morals or welfare that there is a virtual unanimity of opinion in to it ... a regard may court constitute itself the voice of the community” and declare Mamlin public policy. Ass’n), (City Philadelphia Beneficiary Genoe Police 340 Pa. 320, 325, (1941). 17 A.2d
The issue before us is whether there is a clear mandate of public policy against gender discrimination that serves as a foundation for the of a recognition common law claim for wrongful discharge employеes not covered Human Relations Act. the Majority, Unlike I find that explicit and clear mandate of public policy against termination upon based sex in our Constitution and law statutory supports which such a claim for wrongful termination.
Our Commonwealth has long been the vanguard of constitutional gender equality expressly and has set forth an explicit public policy against discrimination based sex. upon Specifically, in our state became the first to pass equal rights amendment to its constitution. Our Constitu- Equal Rights tion’s Amendment specifically addresses sex- equality based and prohibits the abridgement equality of under the rights law on the basis Const, I, of sex. Pa. art. § 28 (“Equality rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the individual.”). sex of the explained, We “[t]he thrust of the Equal Rights Amendment is to insure equality of under rights the law and to eliminate sex as a basis for distinction.” Henderson, 97, 101, Henderson v.
(1974). clarified, Our Court further sex of “[t]he citizens of factor in the longer permissible is no
this Commonwealth responsibilities. legal rights legal of their determination or different burdens different benefits impose The law will they on the fact that society the members of a based upon then-justice Stephen Zappala may be man or woman.” Id. As *27 policy of public more clear statement emphasized, “[n]o later The passage amendment. exists than that of constitutional Amendment, I, § Article Pennsylvania Equal Rights Comput- v. Advanced public policy.” Clаy is the of expression 86, 100, Applications, er Thus, it concurring). beyond peradventure is (Zappala, J. in reflected citizenry public policy, explicitly our as matter of charter, discrimination. gender our does not tolerate organic a clear mandate of Not does our Constitution set forth only discrimination, legislature but our public policy against gender Act, The Relations has made this manifest as well.' Human the Amend- adopted years prior Equal Rights 1955-16 of based recognized the insidious nature discrimination ment — Act Specifically, provides the Human Relations upon gender. for an discriminatory practice employer that it is an unlawful alia, to, on the of inter an individual basis sex. § 955. P.S.
The its with Wal- Majority expresses agreement Appellant ter that it the which sets Harpster Assembly public General arena, em- only employees in this and that who are policy in the Human Relations ployed by “employer”—defined alia, Act, persons inter as those four or more employing from discrimination. protected within Commonwealth—are 954(b). way, Majority § another deter- P.S. Stated that, public against gender mines as the discrimination in the Act does not apply announced Human Relations may of these be employers, employees smaller subjected to without recourse. discrimination in the I do not view the Human Relations Act
Respectfully, First, of the Human Relations language same fashion. a clear stating against Act is robust and broad in mandate Indeed, Assembly could gender discrimination. General have spoken more when it forcefully described the corro- sive effect of invidious discrimination:
Such unrest, foments domestic strife and rights privileges threatens of the inhabitants of Commonwealth, and undermines the foundations a free democratic state ... deprives large [discrimination] segments the population of the Commonwealth earn- ings necessary to maintain decent standards of living, neces- sitates their resort public relief and intensifies group conflicts, thereby resulting grave injury to the health and welfare .... 952(a) added). §
43 P.S. (emphasis Moreover, the language employed General Assembly makes concrete a policy that transcends the particular employ- subject ees to the statute. Specifically, the General Assem- bly’s declaration of policy is not limited to employees of an employer statute, as defined in the but to the employment of *28 “all individuals”:
It is hereby declared to be the public policy of this Com- monwealth foster the of all individuals accordance with capacities their regardless fullest of race, color, their creed, religious ancestry, age, national sex, origin, handicap disability, ... and to safeguard their to ... hold without such discrimina- tion, equal opportunities to assure to all individuals .... 952(b) added). § 43 P.S. (emphasis
Thus, the declaration of contained in the Human Act Relations undergirds our Constitution’s clear mandate of public policy condemning discrimination that transcends those employees and employers that are subject to the statute.
Additionally, rather than reading the Human Act Relations as a granting license to discriminate, smaller employers a more natural interpretation of the statute that fits more comfortably with the General Assembly’s declaration of policy is a finding the legislature only intended to place administrative burdens and procedures contained in the Act upon certain larger employers that would be able to absorb under Specifically, procedures. costs of such
the associated only Act, must employer a covered Human Relations but, faced when affirmative requirements, with certain comply discrimination, with the comply must of alleged with a claim forth in the statute scheme set procedural administrative Pennsylvania brought by a complaint of specter face the employee, on behalf of Relations Commission Human power Common- with it the resources bringing bur- to such subjecting only larger employers wealth. While so, that, in doing it not follow be sound does may policy, dens smaller permit intended to Assembly the General and leave the individ- gender an individual due to to terminate ual without recourse. those
Furthermore,
a cause of action for
finding
Human
coverage
who fall outside of
individuals
conclusions
entirely consonant with the
Relations Act
wrongful
have
a claim fоr
recognized
reached
courts which
by
policy expressed
a violation of
upon
based
enact-
constitution,
when the state
has
legislature
even
state
the size of the
statute which limits
ed an anti-discrimination
See,
Molesworth v.
e.g.,
the statute.
by
covered
employer
(1996)
Brandon,
(upholding Mary-
A.2d 608
341 Md.
wrongful discharge
of action for
land’s common law cause
an
against
employer
based on sex discrimination
sex
against
where
employees
with less than 15
amendment,
constitutional
by
discrimination was evidenced
Boston,
statutes,
order);
Thurdin v.
and executive
accord
SEI
LLC,
em-
(concluding
Mass.
Finally, recognize wrongful dis- for those the Human Rela- charge by individuals covered Act,3 tions such a cause of action be limited. a would Unlike claim under the Human Act which could a Relations assert multitude of statutorily-defined discriminatory part acts on of an of action employer, wrongful discharge cause would just be that —a claim limited to an assertion one was upon gender terminated based in violation of our clear man- date of public policy against gender discrimination as ex- pressed in our law. statutory Constitution sum,
In
Majority,
unlike the
I
cannot ascribe to our
simply
Assembly
prohibit
General
the intent to
with four
employers
or more employees
terminating
by
from
an individual
sexually
her,
him
harassing
but to allow those
with
less
than four employees
sexually
harass an individual to the
point
impunity
termination with
without
redress.
In
stead, I would reaffirm our Commonwealth’s long-standing
state,
as an
history
at-will
but I would also find that our
Constitution,
law,
relevant
supported by
statutory
provides
clear mandate
a common law
supports
action for wrongful discharge
gender
based
discrimina
upon
tion for those individuals
outside of the
falling
coverage of the
reasons,
Human Relations Act. For the above-stated
I re
dissent and
spectfully
would affirm the order of the
employees
3. Those
covered
the Human Relations Act must utilize the
procedures
seeking
alleged
administrative
and remedies in
redress for
through
Pennsylvania
Human Relations Commis-
Clay,
sion.
Chief
this dissenting opinion.
Justice CASTILLE
and PMA WORKERS’ APPEAL COMPENSATION (HILL), Appellees.
BOARD Supreme Pennsylvania. Court of 21,
Argued Oct. 2008. July
Decided
2009.
10, Majority
In footnote
that the
аsserts
Human Relations Act is
discrimination,
remedy
preempting
the "exclusive state law
unlawful
for
wrongful
advancement of common law claims for
based
Majority Opinion
on claims of discrimination."
at 509 n.
added).
conclusion,
(emphasis
reaching
at 567-68 n. 10
In
this
but,
Majority
engage
any
preemption analysis,
does not
traditional
rather,
15-year-old
references a
federal district court case. While the
may "exempt”
terms of the Human
Act
Relations
smaller
coverage,
suggestion
from
preemption,
prior
its
there is no
decision,
Moreover,
today’s
our Court has never addressed this issue.
Majority’s
statutory
preemption
contention of
avoids the thrust of
proper analysis:
what I believe to be the
a limited common law claim
wrongful discharge
upon gender
based
discrimination that
grounded upon public policy
plainly expressed
Pennsylvania
as
in the
Constitution,
Furthermore,
solely
in the statute.
in footnote
Majority
offering
criticizes
dissenters
"without evidence” the
proposition
compliance
litigation
"administrative
is more
litigation
Majority Opinion
burdensome than
in courts.”
at
n.
975 A.2d at
n.
12. There is no need for "evidence” to establish what
Majority already acknowledges
opinion:
in its
there exists under the
mandatory
process
Human Relations Act both a
administrative
and the
specter
subsequent litigation
Majority Opinion
in the courts.
at 506-
565-66;
962(c). Thus,
§