The Scope of Retaliation Claims Against Individuals Under Pa. and Phila. Law Is Broader Than You Think

Back in the days when I defended employers, I developed an appreciation for how an accusation of discrimination or harassment could shake a decision-maker’s sense of themselves as fair, unbiased, and well-intentioned at home as well as at work. Should a manager accused of discrimination by a team member take a look at their potential unconscious biases or just deny and defend? In some situations, a decision-maker who denies the accusation may still react with thoughtful reflection. In other situations, the decision-maker or an alleged harasser might react with fury to defend their sense of self: how dare they accuse me? Workers who otherwise like and respect the accused might also get defensive. What if a peer accuses your high performing and inspirational leader of sexual harassment and you cannot imagine it might be true? Before you act on that desire for revenge, keep in mind that the scope of retaliation claims against individuals under Pennsylvania and Philadelphia law is broader than you might think.

In recognition of what we might consider a “natural” (or at least unsurprising) reaction to an accusation of discrimination, the law prohibits employers from retaliating against an employee for making a good faith complaint of discrimination. In Burlington Northern & Santa Fe Railroad v. White, 548 U.S. 53 (2006), the U.S. Supreme Court confirmed two aspects of the law’s protections against retaliation that differ from a typical discrimination claim. First, unlike a discrimination claim that usually applies only to “adverse employment actions” impacting the terms and conditions of employment, a retaliation claim may be based on any “materially adverse action” against an employee for making a good faith complaint of discrimination or otherwise engaging in protected conduct. A “materially adverse action” can be anything that might have “dissuaded a reasonable worker” from engaging in the protected action in the first place. Second, the court concluded that the scope of the anti-retaliation provisions of the law extends beyond employment-related retaliatory acts and harm.