[J-98-2019] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
KAREN HARRISON, : No. 51 MAP 2019
:
Appellee : Appeal from the Order of the
: Superior Court at No. 365 EDA 2018
: dated December 12, 2018 Affirming
v. : in Part and Vacating in Part the
: Order of the Lehigh County Court of
: Common Pleas, Civil Division, at
HEALTH NETWORK LABORATORIES : No. 2016-C-1469 dated December
LIMITED PARTNERSHIPS, AND LEHIGH : 19, 2017 and Remanding
VALLEY HEALTH NETWORK, INC., :
: ARGUED: November 19, 2019
Appellants :
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: June 16, 2020
By its express terms, the Pennsylvania Human Relations Act (“PHRA”), 43 P.S.
§§ 951—959, is the exclusive state law remedy for a claim based on retaliatory discharge
for opposing discrimination in the workplace. See 43 P.S. § 955(d) (prohibiting
discrimination against “any individual because such individual has opposed any practice
forbidden by [the PHRA]”). This is precisely the claim Harrison asserts. Therefore, she
is precluded from proceeding in court under the Pennsylvania Whistleblower Law, 43 P.S.
§§ 1421—1427, and the trial court properly dismissed the claim. Accordingly, with all due
respect to the Majority, I dissent because, in my view, the Majority misinterprets the PHRA
in reaching its contrary conclusion.
The PHRA is a comprehensive statute specifically designed to deal with
discriminatory practices. To that end, it declares, inter alia, that “[t]he opportunity for an
individual to obtain employment for which he is qualified . . . without discrimination
because of race, color, familial status, religious creed, ancestry, handicap or disability,
age, sex, [or] national origin . . . is hereby recognized as and declared to be a civil right
which shall be enforceable as set forth in this act.” 43 P.S. § 953. As referenced, the
PHRA specifically prohibits discrimination against an individual like Harrison because she
has opposed discrimination in the work place. Id. at § 955(d).
At the heart of this appeal is the PHRA savings clause, which provides that:
nothing contained in this act shall be deemed to repeal or supersede any of
the provisions of any existing or hereafter adopted municipal ordinance,
municipal charter or of any law of this Commonwealth relating to
discrimination because of race, color, familial status, religious creed,
ancestry, age, sex, national origin or handicap or disability, but as to
acts declared unlawful by section five of this act [relating to unlawful
discriminatory practices] the procedure herein provided shall, when
invoked, be exclusive and the final determination therein shall exclude any
other action, civil or criminal, based on the same grievance of the complaint
concerned. If the complaint institutes any action based on such grievance
without resorting to the procedure provided in this act, such complainant
may not subsequently resort to the procedure herein.
43 P.S. § 962(b) (emphasis supplied).
No one disputes that Harrison’s claim is cognizable under the PHRA or that the
PHRA provides her with an avenue of recourse. Moreover, the Majority, in part, correctly
recognizes that:
where an aggrieved party chooses to pursue a remedial action under the
PHRA, he or she is bound exclusively to the PHRA’s procedures, including
the exhaustion of administrative remedies, and bound to the result;
however, an aggrieved party may instead elect to pursue a remedy that
exists under other municipal laws or laws of the Commonwealth and, by
instituting such an alternative action, will then be precluded from restoring
to the PHRA.
Maj. Op. at 14. What the Majority omits from this statement is that the other municipal
laws or statutes of the Commonwealth must “relat[e] to discrimination because of race,
[J-98-2019] [MO: Dougherty, J.] - 2
color, familial status, religious creed, ancestry, handicap or disability, age, sex, [or]
national origin.” 43 P.S. § 962(b). The Whistleblower Law does not.
The Whistleblower Law is a general statute enacted as a “remedial measure
intended to enhance openness in government and compel the government’s compliance
with the law by protecting those who inform authorities of wrongdoing.” O’Rourke v. Dep’t
of Corrections, 778 A.2d 1194, 1202 (Pa. 2001) (citation omitted). In contrast to the
PHRA’s laser focus on the prohibition of and the provision of remedies for discrimination,
the Whistleblower Law is not related to1 the same subject matter. It is broad and general
anti-retaliation legislation enacted for the express purpose of:
[p]roviding protection for employees who report a violation or suspected
violation of State, local or Federal law, providing protection for employees
who participate in hearings, investigations, legislative inquiries or court
actions; and prescribing remedies and penalties.
Preamble, Act of Dec. 12, 1986, P.L. 1559, No. 169, Cl. 43, 43 P.S. §§ 1421–1428. While
the claim of Harrison may be coincidentally captured by the Whistleblower Law, that law
was clearly not enacted to prohibit discrimination or to provide the remedy for the violation
of the right to be free from discrimination, a civil right expressly declared to be enforceable
under the PHRA.
1 “Relate to” is defined as, inter alia, “to be connected with (someone or something); to
be about (someone or something).” Merriam Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/relate%20to. Accessed 20 Apr. 2020.
Hartman v. City of Allentown, 880 A.2d 737 (Pa. Cmmwth. 2005) (PHRA not intended to
be exclusive in the field of anti-discrimination as 962(b) makes clear that General
Assembly intended to preserve anti-discrimination ordinances from pre-emption). See
also SEPTA v. City of Philadelphia, 159 A3d 443 (Pa. 2017) (recognizing interplay
between PHRA and other laws “related to” discrimination and discussing local ordinance
in terms of the same subject matter as PHRA).
[J-98-2019] [MO: Dougherty, J.] - 3
The fact that an employee claims that she was disciplined for bringing a
discriminatory policy or practice to light does not provide an end-around to the PHRA
through the Whistleblower Law. By the Majority’s reading of Section 962(b), any claim of
discrimination that can be shoehorned into a statute or law not specifically intended to
prevent discrimination can be brought under the auspices of the other statute or law. But
according to Section 962(b), it is the purpose of the statute, not the nature of the claim,
that permits an opt-out of the procedures and relief provided by the PHRA.
Harrison filed a retaliation claim after Health Network allegedly discharged her
because she opposed race-based discriminatory practices against another employee in
their workplace. 43 P.S. § 953. Because Harrison’s claim is based on workplace
discrimination and the Whistleblower Law is not an anti-discrimination statute, the PHRA
provides the exclusive remedy. Hence, I would reverse the Superior Court’s ruling.
[J-98-2019] [MO: Dougherty, J.] - 4