Insight Center: Publications

The 'Perceived As' Theory of Discrimination in Pennsylvania

Labor and Employment Law Update

Authors: Hope A. Comisky and Fatima Bhuriwala


A version of this article was originally published in the August 2012 issue of The HR Specialist. It is reprinted here with permission.

Myron Cowher sued his New Jersey employer and supervisors because his supervisors frequently directed anti-Semitic slurs towards him. But Cowher was not Jewish, so the trial court dismissed his religious harassment claim, holding that New Jersey law did not recognize a discrimination claim based on perceived membership in such a protected class. The New Jersey Appellate Division disagreed. (Cowher v. Caron & Roberts, 2012 N.J. Super. LEXIS 55 (April 18, 2012).) Broadly interpreting the New Jersey Law Against Discrimination, it held that the statute prohibited discrimination based on a protected characteristic even if the harassment victim did not possess, but was perceived to possess, the protected characteristic.

This decision was bold because the court diverged from two seminal federal anti-discrimination statutes – Title VII and the Americans with Disabilities Act (ADA) – that prohibit workplace discrimination based on membership in certain protected classes. The ADA explicitly prohibits discrimination against persons even if they are not disabled, but merely perceived to be. Title VII does not expressly prohibit discrimination based on perceived membership in a protected category.

How Will Pennsylvania Courts Receive the ‘Perceived As’ Argument?

The Cowher decision interpreted New Jersey law, but there is no case on point in the Pennsylvania state courts. Two Third Circuit cases have addressed it, and they suggest that Pennsylvania also may allow a discrimination claim based on perceived membership in a protected class, outside of the disability context. Pennsylvania courts are not bound to follow the federal cases, but they generally interpret the state anti-discrimination law consistent with federal law. So these two cases merit consideration.

First, the Third Circuit allowed a plaintiff to sue his employer for retaliation under Title VII when his employer mistakenly thought he was engaged in protected activity. Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 571 (3d Cir. 2002). In the ruling, Chief Judge Edward R. Becker opined that statutes such as Title VII and the Pennsylvania Human Relations Act (PHRA) support a perception theory of discrimination because they make it illegal for an employer to make a discriminatory decision based on a criterion such as race or religion and, therefore, also based on the decision-maker’s subjective intent, regardless of whether the perception behind the discrimination is correct. Thus, the language used in deciding the issue of perception in the context of the retaliation claim before the court was broad enough to allow future claims arising from discrimination based on perceived membership in a protected class.

This language and reasoning were evident recently in a Western District of Pennsylvania case with nearly identical facts as Cowher (Smith v. Specialty Pool Contractors, 2008 U. S. Dist. LEXIS 7255, at *15 (W.D. Pa. Sept. 24, 2008)). There, a plaintiff ex-employee claimed his work environment was hostile because of his race and perceived religion. The plaintiff, a Catholic, was subjected to anti-Semitic comments by his supervisor. The District Court followed the Third Circuit case’s language and held that the plaintiff could use perception theory in his claim even if his harasser-supervisor wrongly perceived him as Jewish.

How Have Federal Courts in Other Jurisdictions Ruled?

These federal cases provide precedent in Pennsylvania to support claims of discrimination based on perceived membership in protected categories, but have had little influence outside Pennsylvania. Numerous federal cases outside the Third Circuit clearly establish a trend toward dismissal of such claims. For example, a 2004 Eastern District of Tennessee case dismissed a plaintiff’s hostile work environment claim based on his perceived national origin and race, concluding that Title VII protects people belonging to a protected class and is silent about protecting people who are only perceived to belong to the class. (Butler v. Potter, 345 F. Supp. 2d 844 (E.D. Tenn. 2004).) The court found support in the federal statute on disability that explicitly extends protection to persons who are only perceived to be disabled. In noting the absence of such language in the federal anti-discrimination statutes, the court stated, “Congress knows how to enact legislation that protects persons who are wrongly perceived to be in a protected class.” The reasoning and the decision to dismiss such claims have been adopted almost unanimously across many different geographic regions. As another example, in March 2012 an Ohio district court dismissed a plaintiff’s hostile working environment claim based on his perceived national origin. (Burrage v. FedEx Freight, Inc., 2012 U.S. Dist. LEXIS 43365 (N.D. Ohio Mar. 29, 2012).)

These federal court decisions post-dated the Third Circuit decision to the contrary, and came after the EEOC’s updated compliance manual, which opined that employment discrimination based on misperception of an employee’s race or national origin violated Title VII (EEOC COMP. MAN. 13-II and 15-II) – signaling the courts’ lack of deference to the EEOC guidance on this issue.

Food for Thought on the Success of 'Perceived As' Claims

Although the federal courts sitting in Pennsylvania have allowed such claims, the cases seem to be outliers among the other federal courts that have dismissed such actions. And the decided cases are no more than persuasive authority, not binding on the Pennsylvania courts. A Pennsylvania court is free to choose to side with its own federal court, or follow the majority trend.

This uncertainty leaves Pennsylvania employers potentially exposed to lawsuits from employees claiming discrimination based on their perceived membership in protected categories, and Pennsylvania employers must know this potential risk and work to minimize exposure to it.

Hope A. Comisky and Fatima Bhuriwala

Fatima Bhuriwala is a 2012 summer associate in Pepper Hamilton’s Philadelphia office. She is not admitted to practice law.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.