United States: “Perception Theory” May Not be Utilized in Retaliatory Discharge Action Against Former Employer

A federal district court, construing Pennsylvania law, held that in order for a discharged worker to maintain a civil action against a former employer for retaliatory discharge, it is insufficient for a discharged worker to show that the former employer believedthe worker was going to seek workers’ compensation. The employee must either have actually filed a claim for benefits or at least expressed his intent to do so in order for the termination to be deemed retaliatory. The district court observed that the Third Circuit Court of Appeals had recognized the so-called “perception theory” in the context of retaliation claims alleged under the ADA, the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act (PHRA). The theory could not be utilized, however, in a retaliatory discharge case based upon a worker’s work-related injury or claim.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Bamat v. Glenn O. Hawbaker, Inc., 2019 U.S. Dist. LEXIS 125087 (M.D. Pa., July 26, 2019)

See generally Larson’s Workers’ Compensation Law, § 104.07.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see