Pa. Commonwealth Court Affirms PHRC Sex Discrimination Order

In Raya and Haig Hair Salon v. PHRC, 2006 WL 3933136 (Pa. Cmwlth. Jan. 25, 2007), the Pennsylvania Commonwealth Court affirmed an order by the Pennsylvania Human Relations Commission assessing damages against a hair salon for sex discrimination in violation of the Pennsylvania Human Relations Act.  In particular, the PHRC had alleged that the salon had permitted a customer to subject the complainant (an employee of the salon) to various forms of sexual harassment.  Remarkably, after several years of this alleged conduct by the customer, the customer was hired by the salon and he became the supervisor of the complainant.  The Court upheld the PHRC's finding that the complainant had been subjected to a hostile work environment, observing that to prevail on such a claim the complainant was required to prove that:  (1) intentional discrimination because of the employee's race or gender; (2) the harassment was severe or pervasive and regular; (3) the harassment detrimentally affected her; (4) the harassment would detrimentally affect a reasonable person of the same protected class; and (5) the harasser was a supervisory employee or agent.  The Court also upheld the PHRC's finding that the complainant had been constructively discharged (she had resigned to open her own salon), i.e., the employer had knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.

An interesting evidentiary issue addressed by the Court was whether the PHRC erred in admitting evidence of a hostile work environment at the salon prior to the period of time that the complainant alleged that she was harassed.  The Court held that this was proper, citing the U.S. Supreme Court decision in National Railroad Passenger Corp. v. Abner Morgan, Jr., 536 U.S. 101 (2002), for the proposition that "consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile work environment takes place within the statutory time period."

Finally, the Court rejected the employer's contention that the complainant had failed to mitigate her damages.  The Court observed that although plaintiffs have a duty to mitigate their damages, "the burden of mitigation imposed on a complainant is not onerous and does not require success.  All that is required is an honest, good faith effort."  (citations omitted)  The Court stated that it was the employer's burden to show a failure to mitigate and that to meet this burden, the employer "must demonstrate that substantially comparable work was available and the complainant failed to exercise reasonable diligence in seeking alternative employment."  The Court noted that the salon failed to present any evidence showing that actual jobs existed that would have been substantially equivalent to the position held by the complainant.