- Pennsylvania Superior Court Prohibits Sexual Discrimination Claims under the PA Equal Rights Amendment against Private Actors
- March 25, 2009
- Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Harrisburg Office
On September 29, 2008, in Dillon v. Homeowner's Select, Affinity Insurance Services, Inc., 957 A.2d 772 (Pa. Super. 2008), the Superior Court of Pennsylvania ruled that private employers cannot be held liable for gender discrimination under the Equal Rights Amendment of the Pennsylvania Constitution. The Equal Rights Amendment provides:
Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.
Pa. Const., Art. I, § 28. The purpose of the amendment was to prevent imposition of different benefits or burdens upon citizens based on their sex. Since its passage in 1971, the Amendment led to the abolition of the principle that a husband owns all household goods possessed by both spouses, has caused courts to permit both husband and wife to assert claims for loss of consortium, and to reject the presumption that a wife who commits a crime in the presence of her husband was coerced.
In Dillon, Lisa Dillon obtained employment from Homeowner's Select, Affinity Insurance Services, Inc. She alleged that about 18 months after beginning employment, her immediate supervisor began making sexually offensive comments and engaging in sexually offensive conduct toward her. She reported the behavior to the human resources department, but the conduct continued until she was voluntarily transferred to a different department.
On February 8, 2006, Dillon filed a civil complaint against Homeowner's, alleging gender discrimination in violation of the Pennsylvania Equal Rights Amendment. Homeowner's then filed preliminary objections to the complaint, alleging that no cause of action exists against a private employer under the Equal Rights Amendment. The trial court granted Homeowner's preliminary objections, and Dillon appealed the decision to the Superior Court.
The Superior Court began its deliberations by examining a number of past decisions interpreting the Equal Rights Amendment, beginning with Hartford Accident and Indemnity Co. v. Insurance Commissioner, 482 A.2d 542 (Pa. 1984). Hartford involved a male insured filing a complaint with the Pennsylvania Insurance Commissioner alleging that Hartford's gender-based automobile insurance rates, requiring him to pay $148 per year more than a similarly situated female, violated the Equal Rights Amendment.
The Insurance Commissioner, interpreting Pennsylvania law, invalidated the gender-based rates. The Supreme Court upheld the Commissioner's decision, finding that:
The text of Article I, section 28 makes clear that its prohibition reaches sex discrimination "under the law." As such, it circumscribes the conduct of state and local government entities and officials of all levels in their formulation, interpretation and enforcement of statutes, regulations, ordinances and other legislation as well as decisional law.
Hartford, 482 A.2d at 549.
The Supreme Court also made it clear that the "state action doctrine," which allows for private actors to be held liable under U.S. Constitutional Amendments when they have significant contacts with the state, has no application when determining the scope of the Pennsylvania Equal Rights Amendment. Essentially, the Supreme Court has defined the scope of the Equal Rights Amendment to gender-based discrimination by state or local entities or officials, whether through statutes, ordinances, policies, or court rulings.
Several follow-up cases to Hartford, also involving challenges to gender-based insurance rates under the Equal Rights Amendment in the Commonwealth Court and Superior Court, affirmed that a plaintiff must assert that the discriminatory conduct at issue was perpetrated by a state or local entity or official in the formulation, interpretation, or enforcement of statutes, regulations, ordinances, and decisional law.
The Superior Court, after reviewing the prior case law interpreting the Equal Rights Amendment, found that while the Amendment prohibits state and local government entities or officials from denying equality of rights due to sex, it does not limit or prohibit the conduct of private citizens or entities. The scope of the Amendment is limited to its language, and the court held that nothing in the Amendment's text indicates an intent to regulate private conduct.
The court does note one important caveat to its ruling, where discrimination occurs at an employer with fewer than four employees. Traditionally, the sole avenue for sexual discrimination claims is the Pennsylvania Human Rights Commission. However, the Commission's rules only apply to employers with more than four employees. In Weaver v. Walter W. Harpster & Shipman Financial Services, 885 A.2d 1073 (Pa. Super. 2005), the Superior Court allowed a limited exception to Pennsylvania's at-will employment doctrine when an employee is prevented from bringing a sexual discrimination suit only because the employer has fewer than four employees. The court did, however, make it clear that the cause of action was one for wrongful discharge, not a direct claim for damages under the Equal Rights Amendment, which ensures that the interpretation of the Amendment under Hartford remains consistent.
While the Equal Rights Amendment has been used to curtail discriminatory practices in arguably private contexts, like gender-based insurance premiums, the Pennsylvania courts have made certain to distinguish between actions for a private injury caused by a local or state entity, official, or legislation and actions for a private injury by a private entity or person. Therefore, no cause of action will stand for conduct by a private entity or individual, even if that conduct does violate the Equal Rights Amendment.