By: Jennifer R. Russell
March 21, 2013
In addition to providing for employer liability for discrimination claims, the Pennsylvania Human Relations Act ("PHRA") and similar local laws, including Allegheny County's Human Relations Ordinance, Philadelphia's Fair Practices Ordinance and Pittsburgh's Fair Practices Ordinance, contain provisions giving employees or applicants an additional claim of aiding and abetting liability against individual defendants. Notably, however, if the underlying discrimination claim against the employer is dismissed, any aiding and abetting claim should also be dismissed.
Section 955(a) of the PHRA makes it unlawful for an employer with four or more employees to engage in employment discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin, non-job related handicap or disability, the use of a guide or support animal because of blindness, deafness or physical handicap or having a GED rather than a high school diploma. 43 P.S. § 955(a). Allegheny County's ordinance similarly applies to employers with four or more employees and also contains additional classes protected from discrimination, including gender identity or expression, familial status, marital status and sexual orientation. Allegheny Cnty. Code § 215-32. Philadelphia's ordinance applies to all employers and contains additional classes of domestic/sexual violence, ethnicity, gender identity, genetic information, familial status, marital status and sexual orientation. Phila. Code § 9-1103. Pittsburgh's law applies to employers with five or more employees and similarly contains additional classes of familial status, place of birth and sexual orientation. Pittsburgh City Code § 659.02.
The PHRA also provides for aiding and abetting liability at Section 955(e), which states that it is an unlawful discriminatory practice:
43 P.S. § 955(e). Nearly identical provisions are contained at Section 215-32(B)(8) of Allegheny County's ordinance, Section 9-1103(1)(h) of Philadelphia's Ordinance and Section 659.01 of Pittsburgh's ordinance. These provisions are broader than Title VII, which does not provide for individual liability.
Courts have held that the aiding and abetting liability permitted by Section 955(e) is akin to "accomplice" liability. See, e.g., Frye v. Robinson Alarm Co., No. 97-0603, 1998 U.S. Dist. LEXIS 1331, * 9, 1998 WL 57519, * 3 (E.D. Pa. Feb. 11, 1998) ("PHRA establishes accomplice liability for individuals who aid and abet a violation of the statute by their employer").
Federal courts in Pennsylvania have dismissed plaintiffs' aiding and abetting claims against individual defendants where there is no corresponding Section 955(a) violation by the employer to aid and abet. See, e.g., Scully v. Allegheny Ludlum Corp., No. 06-2252, 2007 U.S. App. LEXIS 28485 (3d Cir. Dec. 10, 2007) (affirmed dismissal of PHRA aiding and abetting claim because underlying age discrimination claims under ADEA and PHRA against employer were dismissed); Unangst v. Dual Temp Co., No. 10-6811, 2012 U.S. Dist. LEXIS 36852 (E.D. Pa. Mar. 19, 2012) (entered summary judgment in favor of individual defendants on PHRA aiding and abetting claim where underlying PHRA claim against employer dismissed).
In Unangst, the plaintiff, a HVAC service technician, had been reported to Human Resources ("HR") and the Safety Manager by his supervisor for poor performance. Shortly thereafter, the plaintiff was diagnosed with cancer and was granted short-term disability to undergo chemotherapy. While on leave, the defendant-employer laid off approximately 40 employees because of the economy and a lack of work. The HR and Safety Manager authored several memoranda detailing the nature of the layoffs and noting they were due to "current working requirements." When the plaintiff attempted to return to work in February 2009, he was informed by the HR and Safety Manager that he would be laid off because of a lack of work. The plaintiff alleged disability discrimination and retaliation claims against the defendant-employer under the ADA and PHRA, and individual claims against his supervisor and the HR and Safety Manager, asserting they aided and abetted the discrimination and retaliation.
The Court entered summary judgment for the defendant-employer, holding that the defendant-employer had provided considerable evidence in support of a legitimate, non-discriminatory reason for terminating the plaintiff, the economic downturn and plaintiff's performance that made him a candidate for layoff. The Court held that the individual defendants were implicated by the aiding and abetting provision of the PHRA. However, the Court held that "nonemployers such as [the individual defendants]" 'cannot violate Section 955(e) when there is no corresponding Section 955(a) violation by an employer to aid and abet.'" Unangst, 2012 U.S. Dist. LEXIS at * 26-27 (citations omitted). As a result, since the court entered summary judgment in favor of the employer on the PHRA claims, the Court held that the plaintiff was unable to prevail on the aiding and abetting claims as a matter of law and entered summary judgment on those claims as well. Unangst, 2012 U.S. Dist. LEXIS at * 27.
The lesson of Unangst is simple, employers can more successfully defend discrimination claims, including claims against individual managers and supervisors, by adequately documenting employee performance, evaluations and discipline and clearly defining the business reasons behind employment decisions. Individual managers and supervisors must document conversations with employees about performance and be sure that such documentation is maintained in employees' personnel files. For an aiding and abetting claim to survive, there must at least be a material issue of fact regarding the underlying claim against the employer. Therefore, employers seeking to dismiss claims of discrimination under Section 955(a) of the PHRA and similar sections of local laws should argue that any aiding and abetting claims made against individual defendants should likewise be dismissed.