EEO - Harassment: Pennsylvania
Federal law and guidance on this subject should be reviewed together with this section.
Author: Christin Choi, Fisher Phillips
- The Pennsylvania Human Relations Act prohibits employers from harassing any employee, independent contractor, or job applicant on the basis of race, color, religion, ancestry, age, sex, national origin, or non-job related handicap or disability. See Prohibition Against Harassment.
- Sexual harassment constitutes a form of prohibited sex discrimination. See Sexual Harassment.
- Harassment because of other protected categories may also constitute unlawful discriminatory conduct. See Other Protected Categories.
- An employer is responsible for its acts and the acts of its agents and supervisory employees with respect to harassment and may be responsible for the acts of co-workers and third parties if the employer (or its agents or supervisory employees) knew or should have known of the conduct and failed to take immediate corrective action. See Employer Liability.
- State law does not require private employers to conduct harassment training, but does require that Commonwealth employees receive harassment training. See Training.
- Remedies for harassment include injunctive relief, reinstatement, back pay, and/or any other legal or equitable relief. Punitive damages, however, are not available under the PHRA. See Remedies.
- Localities including Philadelphia and Pittsburgh have requirements pertaining to harassment. See Local Requirements.
Prohibition Against Harassment
The Pennsylvania Human Relations Act (PHRA) prohibits employers from harassing any employee, independent contractor, or job applicant on the basis of race, color, religion, ancestry, age, sex, national origin, or non-job related handicap or disability. PHRA, +43 P.S. § 955.
Local requirements may also apply. See Local Requirements.
Forms of Harassment
Sexual harassment is any unwelcome sexual advance, request for sexual favor, and other verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made explicitly or implicitly a term or condition of employment;
- Submission to or rejection of such conduct is used as the basis for employment decisions; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating a hostile work environment.
Sexual harassment may include actions by members of the opposite sex of the employee, as well as members of the employee's own sex. See Pennsylvania Human Relations Commission Guidelines on Sexual Harassment.
Other Protected Categories
An employer may be found to have subjected an employee to a hostile work environment based on harassing conduct if the following elements are satisfied:
- Employee experienced intentional discrimination because of his/her protected class;
- The harassment was severe or pervasive and regular;
- The harassment detrimentally affected him or her;
- The harassment would detrimentally affect a reasonable person of the same protected class; and
- The harasser was a supervisory employee or agent.
See Barra v. Rose Tree Media Sch. Dist., +858 A.2d 206, 215 (Pa. Commw. 2004).
Pennsylvania follows the standards for employer liability under Title VII. See Hoy v. Angelone, +691 A.2d 476 (Pa. Super. 1997).
Employers and Supervisors
An employer is responsible for its acts and the acts of its agents and supervisory employees with respect to harassment, regardless of whether the acts were authorized or forbidden by the employer and regardless of whether the employer knew, or should have known, of their occurrence. The PHRC will examine the circumstances of the employment relationship and job functions performed by the individual to determine whether the individual acts in either a supervisory or an agency capacity.
An employer also is responsible for acts of harassment between co-workers where the employer (or its agents or supervisory employees) knew or should have known of the conduct, unless the employer can show that it took immediate and appropriate corrective action.
An employer may be responsible for acts of harassment in the workplace by non-employees where the employer (or its agents or supervisory employees) knew or should have known of the conduct and fails to take immediate and appropriate corrective action. The PHRC will consider the extent of the employer's control and any other legal responsibility the employer may have with respect to the conduct of non-employees.
Liability to Other Individuals
If an employment opportunity or benefit is granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be liable for sex discrimination with respect to other individuals who were qualified for, but denied, that employment opportunity or benefit.
State law does not require private employers to conduct harassment training, but such training is highly recommended to reduce the potential for harassing conduct to occur in the workplace, to increase awareness among supervisory employees and non-supervisory employees so as to allow the employer to take immediate and appropriate corrective action if such conduct comes to light, and to serve as a potential defense for an employer who has been charged with harassment.
State law does require Commonwealth employees to be educated in sexual harassment issues. Such education may consist of written materials, formal training, educational videos, orientation sessions, workplace discussions, or individual counseling. Commonwealth employees must be provided with a copy of the Commonwealth policy concerning sexual harassment and are required to sign an acknowledgement that they have received and reviewed the policy. +4 Pa. Code § 7.595.
Remedies and Penalties
Remedies for harassing conduct that violates the PHRA include:
- An injunction against engaging in unlawful discriminatory practices;
- Reinstatement or hiring of employees; and/or
- Granting of back pay, and any other legal or equitable relief that a court deems appropriate.
Punitive damages are not available pursuant to the PHRA. See Hoy v. Angelone, +720 A.2d 745 (Pa. 1998).
Any person who resists, prevents, impedes, or interferes with the PHRC in the performance of its duties under the PHRA, or who willfully violates an order of the PHRC, may be found guilty of a misdemeanor and required to pay a fine of no less than $100 and no more than $500. +43 P.S. § 961.
Philadelphia Fair Practices Ordinance
In addition to the categories protected by Pennsylvania state law, the Philadelphia Fair Practices Ordinance prohibits discrimination based on marital status, sexual orientation and gender identity. This law covers all employers including the City of Philadelphia. Phila. Code § 9-1101; see EEO - Discrimination: Pennsylvania.
Pittsburgh Fair Practices Ordinance
The Pittsburgh City Code defines employer to include any person who employs five or more employees (excluding parents, spouses, and children). +Pittsburgh, Pennsylvania Code of Ordinances Sec. 651.04; see EEO - Discrimination: Pennsylvania. The ordinance expands upon the classes protected by federal law.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.