Another day, another court decision striking down an
employee's attempt to bring a "wrongful termination" claim. The
Pennsylvania Superior Court case is Mikhail v. Penn. Org. for Women in Early Recovery, 2013
Pa. Super. LEXIS 82 (slated for publication in A.3d) [an enhanced version of this opinion is available to lexis.com
subscribers]. However, this case included some good news for
the tort of wrongful termination.
The employee was a licensed professional counselor (LPC)
who was fired for refusing to include a female registered sex offender in group
therapy with women who had been abused in the past. To bring a wrongful
termination claim, an employee must tie their termination to "a clear
mandate of public policy." As the Pennsylvania Superior Court explained:
In sum, an employer
(1) cannot require an employee to commit a crime,
(2) cannot prevent an employee from complying with a
statutorily imposed duty, and
(3) cannot discharge an employee when [specifically]
prohibited from doing so by statute.
(quoting past precedent). The employee argued that her
termination violated public policy as set forth in the ethical guidelines for
LPCs (adopted as administrative guidelines in the "Pa. Code").
First, the bad news for wrongful termination claims. The Court held that none
of the rules expressly prohibited placing sex offenders in therapy sessions
with victims of sexual abuse. And, the Court's not going to allow
a cause of action where a judgment call could arguably find a
violation of the rule (for example, the rules require an LCP to select
compatible group members "to the extent possible" - that's just
not clear enough to create a cause of action here).
But, there was also some good news for wrongful termination claims. First,
the Court refused to require a tie-in between the public policy and the
Narrowing the wrongful discharge cause of action to
encompass only those public policies that relate to the employer-employee
relationship is unwarranted by precedent; would eviscerate public policy
exceptions previously validated by this Court; and would thwart the purpose of
the exception to the general at-will employment rule: the protection of
clearly-established Pennsylvania public policy.
And, the Court also recognized the possibility that the
administrative rules governing certain professions could represent clear
mandates of public policy for establishing a wrongful termination claim. On the
latter point, I should note that the Court did not expressly make a
determination - but the fact that they didn't outright reject the admin. code
as a basis for a wrongful termination says something. There was also a
However, at the end of the day . . . the wrongful termination claim still lost.
The Superior Court affirmed the trial court's dismissal of the plaintiff's
Read additional employment law articles on Phillip Miles'
blog, Lawffice Space
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