On June 16, 2020, the Pennsylvania Supreme Court opened a new avenue for employees to file retaliation claims.  In a majority decision,¹ the court held that the Pennsylvania Human Relations Act (PHRA) is not the only pathway for a former employee to pursue a claim for wrongful termination for reporting discrimination and harassment. Instead, the court found that employees may also bring claims under the Pennsylvania Whistleblower Law (Whistleblower Law), which prohibits retaliation against employees who make a good-faith report of a violation of any federal or state statute by a public or publicly funded employer. The court’s ruling applies only to employees who are not the victims of discrimination themselves. The decision allows this limited class of employees to forego first filing a charge of discrimination with the PHRC and allows them to immediately file a complaint in court.

Background

The plaintiff alleged her health care employer terminated her employment after she complained that an IT supervisor was engaging in allegedly abusive, harassing, and discriminatory behavior toward another employee based on that employee’s race. The plaintiff filed a complaint in the Court of Common Pleas under the Whistleblower Law, contending that her job termination was in retaliation for her complaints.  The plaintiff did not assert a claim under the PHRA. 

The defendants filed preliminary objections to the plaintiff’s complaint, arguing that the PHRA provides the exclusive remedy for the alleged retaliation and that the complaint should be dismissed because she failed to exhaust her administrative remedies prior to commencing the lawsuit.  The defendants relied on Clay v. Advanced Computer Applications, Inc., 559 A.2d 917 (Pa. 1989), which held that the PHRA precludes common law wrongful discharge claims premised upon retaliation for reporting discrimination or harassment. The trial court sustained the preliminary objections and dismissed the plaintiff’s complaint.

The Supreme Court’s Analysis

After the Pennsylvania Superior Court reversed the trial court’s decision, the defendants appealed to the Pennsylvania Supreme Court. The court held that the plain language of the PHRA does not preclude a plaintiff from pursing a claim under the Whistleblower Law, finding 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.” The court distinguished its decision in Clay because the plaintiff was not pursing a common law wrongful discharge claim, but rather was enforcing her rights under the Whistleblower Law. The court concluded that “plaintiffs who are not themselves the victims of discrimination . . . , but who report discriminatory conduct made unlawful by the PHRA, may pursue a claim under the Whistleblower Law notwithstanding the viability of a claim under the PHRA for the same harm.” 

In a concurring opinion joined by two justices, the Chief Justice stated that the court’s decision in Clay should be limited to hold that the PHRA precludes only common law claims, meaning that any individual who has a claim under both the PHRA and Whistleblower Law may elect which remedy to pursue. Justice Wecht issued his own concurring opinion, arguing that Clay should be overruled: “the plain text of Subsection 12(b) clearly states that an individual aggrieved under Section 5 may choose to file either in the PHRC or in a trial court, we have no choice but to conclude that this was the General Assembly’s intent.”

What Does this Decision Mean for Employers?

The court’s decision affects a limited group of employers—public employers or those that receive public funding—and, at this point, a limited group of potential plaintiffs—those who complain about discrimination and/or harassment on behalf of someone else but are not themselves discriminated against. Given the concurring opinions that would apply the ruling to claims filed by alleged victims of discrimination based on characteristics covered by the PHRA, the supreme court may, in another case, extend its holding.  

Because of the limited scope of the ruling and the fact that both the PHRA and Whistleblower Law have the same statutes of limitations (or timeframe to file a charge), provide for the same types of damages, and do not provide the right to a jury trial, this decision may not result in an increase in claims filed under the Pennsylvania Whistleblower Law, unless plaintiffs want to forego the administrative process and to get into court more quickly.