Monday, January 11, 2010

Discrimination by Employers not Covered by Statute

Whether an employer is covered under a discrimination statute is often a factor of the number of people it employs. I recently covered this in Know Thine Coverage-Number of Employees Lower than you Think. In that post, I warned that "states have recognized a cause of action for wrongful discharge based on discrimination in violation of public policy - even where the employer is not covered by discrimination statutes!"

This past summer, the Pennsylvania Supreme Court rejected this theory under Pennsylvania state law. In Weaver v. Harpster, 975 A.2d 555 (Pa. 2009), the Court held that neither the Pennsylvania Human Relations Act (PHRA) nor the Pennsylvania Constitution's Equal Rights Amendment provided a public policy exception to the at-will employment doctrine where the employer had too few employees to be covered by PHRA.

Under the at-will employment doctrine, employers can generally terminate an employee for any or no reason. Employees may bring a cause of action where the termination violates a clear mandate of public policy. This is very much a factor of state law (both the at-will doctrine and the public policy exceptions).

Though the Pennsylvania Supreme Court declined to acknowledge such a cause of action, other states have. Justice Todd, in dissent, was kind enough to provide us with a rundown of some of these decisions from other states:
"[F]inding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute. See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland's common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts' state employment discrimination law); Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia's public policy found in state human relations act); Roberts v. Dudley, 140 Wash.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington's public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C.App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same)."
Thanks Justice Todd! That's a pretty nice list for anyone researching the topic.


  1. Philip - thanks for the post! I'm teaching Employment Law this semester, and we are talking right now about public policy exceptions to the employment at-will doctrine. I plan to use your post as an introduction to employment law blogs and as a survey on how courts around the country have viewed public policy exceptions. Thanks for the helpful post! - Melanie

  2. Thanks Melanie! I think legal blogs are a great resource for students and I'm honored that you would mention Lawffice Space to your class. Also, thank you for the RT (do you cover Twitter?).

  3. Yes, I will cover Twitter! I think it's a great resource for changes in employment law.