PENNSYLVANIA EMPLOYMENT DISCRIMINATION CLAIMS: Why Federal Courts are the Venue of Choice and Why that Could Change in the Near Future
By: Felix S. Yelin, Esquire and Jeffrey P. Burke, Esquire
Why are employment discrimination claims based on Pennsylvania state law primarily filed in federal court? This counter-intuitive practice arises from how Pennsylvania appellate and federal courts have interpreted the Commonwealth’s civil rights law, specifically with respect to the availability of a right to a trial by jury.
What is the PHRA?
The Pennsylvania Human Relations Act (“PHRA”), Title 43 P.S. §§ 951-963 (2020), is the Commonwealth’s employment, housing, and public accommodation anti-discrimination, civil rights law. Among other things, PHRA provides that an individual has a right to obtain employment for which he or she is qualified without discrimination because of, inter alia, race, color, religious creed, handicap or disability, age, sex, national origin and a few other protected class characteristics. However, while state employment anti-discrimination laws are often broader than their federal counterparts in a number of respects, the PHRA has been interpreted by the Supreme Court of Pennsylvania to bar the availability of a jury trial to plaintiffs.
Where do PHRA plaintiffs have a right to a jury trial and how does this affect litigation?
The plaintiffs’ right to a state court jury trial under the PHRA was at issue in the Pennsylvania Supreme Court case Wertz v. Chapman Township. The relevant provision of the PHRA states:
(3) If the court finds that the respondent has engaged in or is engaging in an unlawful discriminatory practice charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employes [sic], granting of back pay, or any other legal or equitable relief as the court deems appropriate . . . .
After an exhaustive interpretation of this provision, the Court concluded that the Pennsylvania General Assembly did not intend for a plaintiff to have a right to a jury trial for PHRA claims.
However, federal courts in the Third Circuit Court of Appeals have reached different conclusions with respect to jury trials, pursuant to federal procedural law. Specifically, the Third Circuit concluded that the right to a jury trial in federal court—even for state law substantive claims—presents a question of federal law under the Seventh Amendment. Consequently, Third Circuit courts have clearly held that the Seventh Amendment presents a right to a jury trial for plaintiffs seeking compensatory relief under the PHRA.
Due to the importance that many plaintiffs and their counsel place on jury trials, much of the PHRA litigation has been brought in the federal courts. However, this has led to two specific concerns and strong pushes to amend the PHRA to permit state court jury trials.
First, rural employment-discrimination plaintiffs with valid PHRA claims may be unable to secure legal representation from local counsel who do not want to travel long-distances if practically forced to file in a federal court. Second, federal jury panels are less racially diverse than state court juries, which may be a particular problem when dealing with employment racial discrimination claims. Without access to the comparatively more racially diverse state court jury panels, minorities throughout the Commonwealth could be denied the opportunity to litigate their claims before jurors who share their racial and ethnic makeup and sensitivity to acts of racial discrimination.
Efforts to amend the PHRA to permit jury trials
Even prior to the Supreme Court decisions, the Philadelphia Bar Association was urging the Pennsylvania legislature to amend the PHRA to permit state jury trials and make the statute consistent with federal civil rights laws. More recently, a bill was introduced in the Pennsylvania State Senate’s 2019-2020 Regular Session seeking to amended the PHRA in order to expressly permit the right to a jury trial in state courts for PHRA-based employment discrimination claims. The bill was last referred to the Labor and Industry Committee on April 18, 2019 without any further action taken. However, there are currently discussions within the Philadelphia Bar Association to make yet another push to have the Pennsylvania legislature amend the PHRA to permit the right to a jury.
How would state court jury trials impact PHRA employment discrimination claims?
Permitting plaintiffs a right to state court jury trials for PHRA employment discrimination claims would certainly impact employers defending against such claims within the Commonwealth.
In September 1999, the U.S. Department of Justice, Bureau of Justice Statistics, published a report titled “Civil Trial Cases and Verdicts in Large Counties, 1996” (“BJS Report”). The BJS Report focused on the nation’s 75 largest counties’ state courts—including Philadelphia and Allegheny counties in Pennsylvania. The BJS Report analyzed how these counties disposed of tort, contract, and real property cases, including employment discrimination cases, in the year 1996.
The BJS Report’s analysis determined that, despite plaintiffs generally finding greater success in bench trials than jury trials across all cases (61% in bench trials compared to 48.7% in jury trials), employment discrimination plaintiffs actually fared worse in bench trials than jury trials. Specifically, such plaintiffs only prevailed in 26% of bench trials compared to 47.6% in jury trials.
Such plaintiffs were also likely to recover more in damages from juries (median $250,000) than judges (median $75,000). Further, such plaintiffs were much more likely to receive a large damages award over $250,000 and $1,000,000 from juries (48% and 14.1%, respectively) than from judges (11.7% and 0%, respectively). Juries were also much more likely than judges to award punitive damages (24 times vs. 1 time) and higher amounts of such damages ($259,000 (median) to $38,000 (actual)).
While the survey is somewhat dated, the disparity in statistics on plaintiffs’ successes with bench and jury trials is quite stark. This makes it critical to track whether the Pennsylvania legislature will eventually amend the PHRA and practically ensure that Pennsylvania state court juries have the primary say over future employment discrimination claims. Such a move may significantly shake up employment discrimination in the Commonwealth. For one, it could certainly lead to an exodus of such litigation from federal courts to state courts. Second, it could also impact the business climate in the Commonwealth and help alter the risk-benefit calculus of Pennsylvania businesses and employers.
Felix Yelin is an attorney at MacElree Harvey, Ltd., working in the firm’s Litigation practice groups. Felix has experience across a number of diverse practice areas, including appellate, first party insurance coverage, class actions, construction defect, construction accident, products liability, insurance defense, toxic torts, and some employment-related issues. He has been a part of a number of high-profile tort trials across the United States involving national litigation. Felix Yelin has also drafted winning appellate briefs filed before the United States Court of Appeals for the Third Circuit and the Superior Court of Pennsylvania.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.
 43 Pa. Stat. Ann. § 953 (West) (2020).
 NCSL, “Discrimination – Employment Laws,” https://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx, July 27, 2015.
 559 Pa. 630, 741 A.2d 1272 (1999).
 43 Pa. Stat. Ann. § 962.
 Wertz, 741 A.2d at 1275.
 Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 313 (3d Cir. 2007), as amended (Aug. 28, 2007); see also U.S. Const. amend. VII. The Seventh Amendment guarantees the right to a trial by jury for controversies that exceed twenty dollars.
 Jones v. Amerihealth Caritas, 95 F.Supp.3d 807, 815 (E.D. Pa. 2015) (internal citations omitted).
 “Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System,” (“Final Report”) 2001, available at < https://files.deathpenaltyinfo.org/legacy/documents/PAFinalReport.pdf>, p. 252.
 See Philadelphia Bar Association Board of Governors Resolution, “Supporting Amendments to the Pennsylvania Human Relations Act,” June 1993, available at < https://www.philadelphiabar.org/page/BoardResolution1313202252000?appNum=3>.
 S.B. 490, 2019 Leg. Sess. (Pa. 2019). S.B. 40 was initially only sponsored by Democrats, but eventually added a Republican co-sponsor. In addition to permitting the right to a jury trial, the bill would also amend the PHRA to provide the availability of punitive damages against private employers, provide reasonable attorneys’ fees and costs, expand the scope of the bill to generally cover employers with as a little as one employee (previously, the threshold was four), and expand the time to file a complaint from 180 to 300 days.
 Available at , < https://bjs.ojp.gov/content/pub/pdf/ctcvlc96.pdf>.
 See ibid., p. 6, Table 5.
 See ibid., pp. 8-9, Table 7.
 See ibid., p. 10, Table 9.
 Subsequent BJS Reports did not appear to engage in the same statistical breakdown as the 1999 BJS Report. Therefore, their more recent statistical findings are less relevant for the purposes of this article.