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PERA doesn’t permit private harassment suits

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in Discrimination and Harassment,Firing,Human Resources

Employees have a relatively short period of time to file sexual harassment and other discrimination claims under either the federal Title VII or the Pennsylvania Human Rights Act (PHRA). If they miss those deadlines, they can’t sue.

But recently, attorneys have been trying out a different tactic when employees have waited too long—they’ve tried suing the employer under the Pennsylvania Equal Rights Amendment (PERA) to the state constitution. Now the Pennsylvania Superior Court has nixed that avenue.

Recent case: Lisa Dillon worked for an insurance company and complained back in 2003 that her supervisor was sexually harassing her and making sexually offensive comments.

By March 2004, the harassment stopped because Dillon accepted a transfer to another department.

Then, almost two years later, she sued her employer under the PERA for sexual harassment. She had already missed the filing deadlines under both state and federal laws. However, she claimed she had the right to sue her employer directly under the Pennsylvania Constitution.

The Pennsylvania Superior Court disagreed. It said there is no private right of action under the PERA. Private-sector employees can’t sue their employers for violating the amendment. The court said Dillon would have to find another way to sue. Suing for wrongful termination might have worked, the court noted—except for the fact that she hadn’t been fired. (Dillon v. Homeowners’ Select, No. 2969 EDA 2006, Superior Court of Pennsylvania, 2008)

Warning: An earlier decision by the same court allowed a woman to sue her employer for sex discrimination even though the company did not have the minimum four employees the PHRA requires. In that case, the court said the woman, who had been fired, could sue for wrongful discharge based on a public policy that sex discrimination is illegal.

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