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Weaver v. Harpster10/21/2005
uant to Article I, Section 28 of the Pennsylvania Constitution, which states " quality 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. Appellant argues that her inability to bring a claim for sexual discrimination denies her equality of rights based on sex. Appellant also contends that the PHRA "bestows a right to be free from discrimination based on sex in the workplace." See Clay, supra at 919. Therefore, the prevention of discrimination based on sex is established in Pennsylvania legislation. In reliance upon this authority, Appellant contends that there is a clear public policy against sexual discrimination which was introduced in the Pennsylvania Constitution, espoused in the PHRA, and recognized in the courts of this Commonwealth. Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221 (3rd Cir. 1984).
13 Further, the PHRA specifically establishes sex discrimination as a cause of action related to remedy, i.e., "that which produces or effects the results complained of." Noonan v. Pardee, 50 A. 255, 256 (Pa. 1901). Our Supreme Court in Ieropoli v. AC&S Corp., 842 A.2d 919, 929-30 (Pa. 2004), albeit in a different context, explained that a cause of action qua remedy "is the vehicle by which a person secures redress for the consequences of a legal injury." That is the situation herein. Because sex discrimination is prohibited under both the equal rights provision of the Pennsylvania Constitution and the PHRA, it constitutes a legal injury whose recompense is mandated by the remedies clause, Article I, Section 11, of the Pennsylvania Constitution, which provides in pertinent part that
ll courts shall be open; and every man for an injury done him in his lands, goods person or reputation shall have remedy by due course of law; and right and justice administered without sale, denial or delay. Pa. Const. art. I, § 11 (Courts to be open; suits against the Commonwealth).
14 It is difficult to believe that the Legislature would first define certain acts as illegal via both the Constitution and statute, thus establishing a public policy unequivocally condemning such conduct, and then remove all judicial recourse for the victims of that conduct. We therefore agree with Appellant's contention that a public policy exception is appropriate for her situation. In this context we find persuasive the conclusion reached by the Third Circuit Court of Appeals that: " discharge in retaliation for the refusal by a woman employee to succumb to sexual advances would abridge a significant and recognized public policy against sexual discrimination in employment." Wolk, supra at 222-23. To prevent an employee who is alleging sexual harassment from pursuing her claim in court only because her employer has less than four employees appears a direct contravention of a clear public policy on grounds both quixotic and arbitrary. She has followed the necessary procedures to obtain redress for her grievance: initially discussing it directly with her superiors and then appealing to the administrative agency charged with the authority to settle such disputes. Following her dismissal by the PHRC, she turned to the courts as a last resort. To prevent Appellant from, at minimum, having her case heard in court would violate "a positive, well-defined, universal public sentiment, deeply integrated in the beliefs of the people and in their conviction of what is just and right and in the interests of the common good." Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa. Super. 2002), appeal granted,833 A.2d 138 (Pa. 2003).
15 Appellees argue that a common law cause of action for sexual discrimination
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