Pennsylvania Commonwealth Court Affirms PHRC Retaliation Finding

In Circle Bolt & Nut Company, Inc. v. Pennsylvania Human Relations Comm'n, 954 A.2d 1265 (Pa. Cmwlth. 2008), the Commonwealth Court affirmed a decision by the Pennsylvania Human Relations Commission awarding lost wages to an employee for unlawful retaliation under Section 5 of the Pennsylvania Human Relations Act.

The charging party, a former employee at Circle Bolt and Nut Company, alleged that after she had complained about sexually explicit songs being sung by other employees in Circle's warehouse, she was transferred to another department and, after working in that department for several weeks, was terminated in retaliation for her previous complaints.

In upholding the PHRC's finding of retaliation, the court observed that although the PHRC had found that the employee had failed to establish a basis for discrimination based on an alleged hostile work environment, the evidence did support the claim that the employee had been transferred and was later terminated because of her complaints. The court reaffirmed that the definition of "protected activity" (i.e., conduct by an employee against which an employer may not retaliate) is very broad and includes "informal protests of discrimination such as complaints to management."

The court also affirmed the PHRC's finding that the charging party had satisfied her duty to mitigate damages by seeking alternative employment. The court restated the principles regarding mitigation in the employment context that (i) it is the employer's burden to show that the employee failed to mitigate, (ii) the burden of mitigation is not onerous and does not require success, only an "honest, good faith effort," and (iii) in order to meet its burden of proving a failure to mitigate, the employer "must demonstrate that substantially comparable work was available and the complainant failed to exercise reasonable diligence in seeking alternative employment."

Michael J. Betts

Hull & Klodowski LLC

November 17, 2008