A Pennsylvania Nonprofit is sued for Race and Religious Discrimination & Retaliation
A Pennsylvania nonprofit was sued by a former employee for discrimination on the basis of race and religion and retaliation in violation of state and federal laws. Despite the actual counts in the complaint, there are numerous missteps in the alleged facts that were easy to avoid, some of which would have eliminated this case altogether.
Alleged Wrongdoing
The Defendant is a nonprofit providing services to disabled people in 47 Pennsylvania counties. They hired the Plaintiff, CS, a Hispanic female with limited proficiency in speaking and understanding English, to provide care to disabled clients. CS was hired in February 2023, and supervised by two Caucasian females, Robin and Tiffany. Robin was her direct supervision while Tiffany appears to have supervised Robin, and so supervised CS indirectly. CS alleges:
Approximately one year into her employment, one of CS’s colleagues allegedly made disparaging remarks to her about her accent, limited English, and characterized her as stupid and slow—despite her limited English, CS was aware of her coworker’s insults because she used a translation app on her phone while the coworker was speaking.
CS reported this incident to Tiffany, but allegedly, Tiffany did not intervene to prevent ongoing harassment of CS by this coworker.
In July 2024, a male coworker made a lewd remark to CS and physical motion as if he was smacking CS’s rear end.
CS “complained to defendant” (it’s unclear who she made the complaint to) about the sexually charged conduct. In response, Tiffany called CS a liar and threatened to write her up for violating policy for making a police report (presumably about the sexually harassing behavior).
The Defendant, having investigated CS’s two complaints above, concluded that CS misunderstood either employee’s words or conduct because of her limited English proficiency, and thus no action was taken against either employee.
Upon starting her job with Defendant, CS was a Mormon who attended the same church as Tiffany, however, after Tiffany allegedly harassed CS at church in front of other attendees, CS left the Mormon faith and began attending a different church which she alleges caused Tiffany to become increasingly aggressive towards her, and CS alleges that Tiffany’s dismissal of her complaints was motivated by religious animosity.
On July 25, 2024, a few days after CS complained of sexual harassment, she took the day off because her son was in the ER. CS’s husband called out for her and offered to get a doctor’s note to justify CS’s absence.
On July 26, 2024, Defendant fired CS based on her failure to follow established protocols for calling out.
CS alleged that non-Caucasian employees were subject to harsher discipline than Caucasian employees, and that while Caucasian employees received progressive discipline, non-Caucasian employees were terminated on one policy violation.
CS’s attorney also highlighted inconsistencies between Defendant’s stated reasons for termination and the alleged reasons for CS’s termination submitted to the EEOC in response to CS’s charge.
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HR Compliance Analysis
Small and mid-size nonprofits, particularly human services nonprofits, appear as Defendants in a disproportionately high number of discrimination filings, compared to private companies of similar size. I believe this is because these entities operate on razor-thin margins, and thus compensate employees on the lower end of the pay range, hoping they can find a quality candidate who is willing to accept a below-market salary because they have passion for the agency’s mission. In 10+ years of representing nonprofits in employment discrimination suits, I have never found this to be an effective HR hiring strategy. So, if you run a nonprofit, and your HR personnel is not at least at the midrange of compensation for your area, chances are you need external HR support to bolster your HR compliance function.
Contact us for assistance with HR Compliance and to discover how HR outsourcing can be a cost-effective strategy for companies who cannot afford highly experienced HR personnel.
Back to this case, as will be clear from my analysis, I am surprised that the attorney here did not bring a national origin claim and possibly an FMLA or ADA claim also. The HR issues I see here include:
Proficiency in written and spoken English should be a job requirement unless EVERYONE in your company is proficient in the foreign language and all your policies and training are in that same foreign language, particularly if your industry requires mandatory training. If this agency had this requirement in their job ads and job description, they would not have this lawsuit. This does not mean that you cannot hire employees with accents or who have English as a second language, but they should be able to understand English and communicate clearly in English with native English speakers and employees whose second language is English. If you have many foreign-borne employees, see our HR tip on I-9 compliance or what to do in the event of an ICE visit.
Managers should never be the recipients of complaints that rise to protected activity; all these complaints MUST go to experienced HR personnel who know how to conduct a thorough investigation and implement safeguards against a potential retaliation claim. Your reporting policy should be clear about where and how to report discrimination so that the right people receive the complaint, the information is safeguarded to preserve the integrity of the investigation, and the complaint should be made in writing so you have a record of when it came in and its scope of alleged misconduct. For information on common policy mistakes see our HR tip on Employee Handbooks. See this HR tip if your employees avoid your HR team.
All reasons for termination should be included in the termination letter—this means you do your fact finding before you terminate and have the letter prepared at time of termination. If you are adding reasons at the EEOC stage, this can work against you. In other words, it’s very unlikely CS was terminated only because she didn’t follow a callout policy, there were probably a range of reasons but she was only told about the final reason, which happened within a couple of weeks of her complaint of sexual harassment, and apparently other people received progressive discipline. If these facts are true, CS has a strong retaliation claim.
If an employee is eligible for FMLA, you don’t fire them because they failed to follow the callout policy because they took their kid to the ER until you know that the child didn’t have an FMLA qualifying condition which would have entitled the mother to get her absence designated as FMLA retroactively—in short, you don’t fire them the next day. Instead, you take precautionary steps to guard against an FMLA interference claim. Click here for our HR Tip on FMLA and ADA outsourcing.
Similarly, you don’t fire someone who has given you information that might communicate that they are associated with a person who is disabled until you have taken precautionary steps to guard against an ADA discrimination claim based on association with a disabled person.
Conduct such as imitating or mocking a coworker’s foreign accent can rise to a hostile work environment based on national origin. Anti-discrimination training should encompass all aspects of each protected characteristic and provide employees with practical, real world examples of conduct that is barred in the workplace and managers should receive training on recognizing unlawful workplace conduct and mandated to report it to Human Resources. Contact us for assistance with discrimination training, management training or executive coaching.
If you are unsure about which workforce mandates apply to your company, complete our company diagnostic for a complimentary HR consultation.
Please Note: In CHRO’s HR Compliance Corner we discuss recent federal court filings for unlawful employment practices and discuss various solutions that could have prevented the complaint. In this section, we treat the complaint allegations as true simply for the purpose of discussion, but readers should realize that the defendant has various defenses they will raise that may entirely undermine the allegations of unlawful conduct in the complaint. Thus, our commentary should not be taken as endorsement of the plaintiff’s position, only as a point of reference for discussion. Neither CHRO nor its officers or employees, have any affiliation or relationship with either the plaintiff or the defendant in any case discussed
