For employers faced with lawsuits requesting a staggering array of potential damages in cases alleging sexual harassment in the workplace, a recent decision by the Pennsylvania Supreme Court provides a limited amount of relief. At the same time, the Pennsylvania Supreme Court joined the long list of courts which have indicated no tolerance for sex charged language and conduct in the workplace. In a decision handed down November 24, the Supreme Court addressed several legal issues which arose in a sexual harassment case which had been tried in the Common Pleas Court of Northumberland County in 1996. Hoy v. Angelone, __ A.2d __, 1998 WL 808634 (Pa. S.Ct. 1998).

The case had been tried under the Pennsylvania Human Relations Act ("the PHRA") – not under the federal law pertaining to sexual harassment in the workplace (Title VII of the Civil Rights Act of 1964). The Supreme Court upheld the jury verdict that the Plaintiff had been subjected to "sexual harassment and a sexually hostile work environment" in violation of the Pennsylvania law. It also upheld the jury’s award to the Plaintiff of $51,000 in damages for these violations. Plaintiff had been employed as the only female meat wrapper in a supermarket. According to the Supreme Court, "This harassment included sexual propositions, physical contact with the back of [Plaintiff’s] knee, the telling of off-color jokes and the use of profanity on a regular basis, as well as the posting of a sexually suggestive picture." Such sexual harassment, Justice Ralph Cappy wrote, "is highly offensive and unacceptable conduct."

Despite its condemnation of sexual harassment, the Pennsylvania Supreme Court unanimously rejected the notion that a Plaintiff may recover punitive damages under Pennsylvania law. The jury had awarded $250,000 of punitive damages against the supermarket and $25,000 each against her supervisor and the store manager, for a total of $325,000 in punitive damages. The Supreme Court, in a long and scholarly analysis of the language and history of the PHRA, concluded that punitive damages are not a type of remedial relief or "affirmative action" which may be awarded under the PHRA.

Tort of Intentional Infliction of Emotional Distress Remains Limited

The Supreme Court confirmed that the trial court had been correct not to grant relief under this theory because the conduct did not rise to the level of outrageousness. The Superior Court had, perhaps, gone too far in writing that, in a sexual harassment case, retaliation had to be present in every case before this tort claim could be honored, the Supreme Court wrote. Nevertheless, the absence of retaliation was one factor which a trial court may properly consider in concluding that an employer’s conduct was not so "outrageous" as to provide for tort relief. The tort is reserved only for "the most clearly desperate and ultra extreme conduct."

Thus, the Pennsylvania Supreme Court set aside the verdict for $325,000 in punitive damages, while emphasizing, "[W]e condemn in the strongest terms the type of conduct exhibited by [Defendants]."

Court Gives Guidance on Recoverable Attorneys’ Fees

The Supreme Court also gave guidance on three issues regarding Plaintiff’s claim for attorney’s fees. The trial court had denied fees to the Plaintiff, considering the large size of the jury verdict.

The Supreme Court ruled that the Plaintiff had no right under the PHRA to fees, but that such a decision was up to the sound discretion of the trial judge. Because the trial judge had been influenced to deny fees, in part, because the Plaintiff had recovered such a large sum in punitive damages, the Supreme Court directed the trial judge to reconsider the issue in light of its ruling that her damages were limited to $51,000 and did not include the $325,000 in punitive damages.

On a related point, the Supreme Court ruled that the trial court should not take into account, as a factor weighing against awarding fees to Plaintiff, that the defendants had already spent a lot of money in attorneys’ fees in defending against the lawsuit. If such a consideration were allowed, the Supreme Court ruled, it would "discourage victims of discrimination from vigorously litigating their claims and would encourage defendants to adopt a ‘scorched earth’ approach to litigation." Thus, the Plaintiff was given a second chance to argue her claim for attorneys’ fees to the trial court.

Thus, although the Pennsylvania Supreme Court’s decision in Hoy provides employers some relief from extreme remedies in sexual harassment cases, there can be no doubt that the Court was using the opinion as a vehicle for expressing its intolerance for sexual harassment in the workplace.

Practice Pointer: Plaintiffs’ attorneys not only look for acts of "retaliation" to buttress a tort claim but many view "retaliation" claims as potentially more lucrative than the underlying "discrimination claim" itself. Such attorneys have used diverse tactics to create the appearance of retaliation, such as: trying to use defense counsel’s internal opinion that the claim was "meritless," attacking the assertion of a counterclaim in the discrimination lawsuit if the counterclaim proved to be ill considered, discovering and second-guessing references given to subsequent employers, and even reviewing and criticizing company e-mail created when responding to claims of discrimination. As always, care must be exercised when you are faced with discrimination claims.