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Weaver v. Harpster10/21/2005
xual harassment and discrimination without first exhausting administrative remedies. The appellees in Clay had failed to seek redress initially through the PHRC for their allegedly discriminatory discharge, and were therefore barred from recourse to the courts. It is clear that subsequent to Clay, the rule continues to be that exhaustion of administrative remedies is a necessary precondition to an employee's attempt to prove a "clear mandate of public policy" in order to bring a cause of action for sexual discrimination. See Carlson v. Community Ambulance Services, Inc., 824 A.2d 1228, 1232 (Pa. Super. 2003); Shick v. Shirley, 716 A.2d 1231 (Pa. 1998).
8 However, the Clay Court did not conclude that there is no alternative to the PHRA as an avenue of relief for sexual discrimination. On the contrary, while definitively prohibiting circumvention of the Act, the Court specifically noted that although initially recourse must be had to the PCRC, aggrieved parties are not deprived of their ultimate resort to the courts. It is provided in section 962 (c) of the PHRA that the rights of a complainant thereunder shall not be foreclosed from being pursued in the courts, if, within one year after the filing of a complaint, the PHRC dismisses the complaint or fails to enter a conciliation agreement to which the complainant is a party.
Clay, supra at 920 (emphasis original).
9 Appellant's approach to the Commission and its rejection of her request were well within the one year time frame, both having occurred within one month. Thus the basis on which the Commission rejects a claim is immaterial to the question of its later justiciability. Here, the nature of the issue presented is indubitably one contemplated by the statute; the problem is entirely contextual.
10 It is well established that Pennsylvania does not recognize a common law cause of action against an employer for the termination of an at-will employee. See Geary v. U.S. Steel Corporation, 319 A.2d 174 (Pa. 1974); Clay, supra. However, where it is clear that a well-established public policy would be subverted, a court may find an exception to this normally rigid edict. See Highhouse v. Avery Transportation, 660 A.2d 1374 (Pa. Super. 1995); Kroen v. Bedway Security Agency, Inc., 633 A.2d 628 (Pa. Super. 1993); Field v. Philadelphia Electric Co. 565 A.2d 1170 (Pa. Super. 1989). The principle to be applied in determining when an exception may have occurred is well-settled:
It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interests of the public weal.
Mamlin v.Genoe, 17 A.2d 407, 409 (Pa. 1941).
11 Further, " o state a public policy exception to the at-will employment doctrine, the employee must point to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision." Hunger v. Grand Central Sanitation 670 A.2d 173, 175 (Pa. Super. 1996), appeal denied, 681 A.2d 178 (Pa. 1996) (citing Jacques v. Akzo International Salt, Inc., 619 A.2d 748 (Pa. 1993)).
12 Appellant contends "that there is a clear mandate of public policy against sexual discrimination and/or sexual harassment in the workplace." (Appellant's Brief at 12). First, she argues that there is a constitutional right to be free from discrimination based on sex purs
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